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mkr

Well-Known Member
11 January 2016
25
1
124
Hi all,

I separated from my wife some years back, and at the time, I was working overseas earning very good income. We established consent orders and agreement for property settlement, spousal maintenance and child support. These agreements were conditional on my continued role overseas. For our two young children, I covered $950/week in payments, plus private school fees (1 child) and health insurance.

Four years later, I have departed this role due to company transfer outside of my control, and been relocated to another country with significantly less income (monthly take home pay reduced by around 50%). My ex-spouse has worked through this time and established a new career which I am happy for. She recently bought a second house at around $700K. As part of our property settlement I left her with our family home (mortgage free) and shares/assets worth around $300K. So, her and children are financially secure and I am happy for that.

Anyway, since leaving my previous role I struggled to make ends meet with these payments and asked if I could reduce the weekly payment for the children from $950 to $700 per week, while also continuing the health insurance and school fees (around $20K per year). She agreed, but has now started coming back to me seeking repayment of the difference over the last few months (calculating a debt) and wanting to know when I will restart additional payments. I feel pressured by her to do so yet if I pay this extra money I will struggle to make ends meet. Ultimately I want to get in a better financial position to be able to return to Australia and spend more time with my children, but meeting her expectations puts me in a trap.

When I look at the child maintenance calculator I think it shows that the maximum I would pay is about $34K per year for two children's care. This is close to the $700 per week I pay. Is it worth me being proactive and asking for a child support assessment, and then honoring that? Then whatever else I can afford to do for my children is clearly in addition to that?

I want to provide as much as I can for my children but do not want to end up financially crippled trying to meet her expectations? Would being proactive in getting this assessment done help put me on more solid ground and maybe help put some boundaries around her expectations? I will never get ahead and able to get back to Australia for my children if I keep having whatever spare money I have being demanded by their Mother.

Regards
 

sammy01

Well-Known Member
27 September 2015
5,152
720
2,894
All that is gonna matter is what is in the contract... So you have consent orders.... They say you pay XXXX as long as you live OS? If you come home, that condition ends,

So there are two types of agreements. A binding one, which is bloody hard to change and a limited one, which can only go for 3 yrs... So it has an expiry date. By the sounds of things , yours is binding. So the only way out is via court or if there is a particular clause...

So if it says something that in the event that MKR resides in Australia then the CSA assessment will apply, but if he resides in country XXX then an amount of XXXX will be payable. Read the fine print of the consent orders - your chances of legally reducing your payments are found there.
 

mkr

Well-Known Member
11 January 2016
25
1
124
Hi Sammy,

Thank you for taking the time to respond and share your expertise and knowledge.

I had a close read of the Consent Orders. In summary, they spell out that I am currently working overseas and earn xxx net per month. Then some sections detailing the support I would provide each of my children.

The orders then state that "The payments detailed shall by made if and only if...

- He holds his present position of full time employment as << Position Title >>> with <<< Employer>>>, or

- He secures a new position of paid employment and receives in that new position a total net of taxation remuneration comparable to the package received by him at the date of signing these proposed minutes of consent orders.

There is finally a notation stating that :

"In the event that the husband moves to a reciprocating jurisdiction and when doing so receives a total remuneration package comparable to that received by him at the date of the se orders, the parties intend to execute a Binding Child Support Agreement in terms like to orders 10 to 12 herein. (** note .. 10 - 12 detail the payments and also the conditions above).

I was living in a non-reciprocal jurisdiction at the time, hence my understanding is that enforcement of these orders would have been difficult and relied on goodwill by myself to meet them (which I have until changing roles to a lower-paid role).

So, in my interpretation, the agreement is basically now null and void. Correct? I am assuming therefore that I can either again negotiate another arrangement with my ex-wife, or is it still sensible to approach Centerlink and ask for a child maintenance assessment. The requirements for spousal support was dated with an expiry (which has now passed), and property settlement is complete, so we are now really just talking child support.

Thoughts? Thank you.
 

Blessing

Well-Known Member
20 April 2017
70
8
224
Sydney NSW
I think since the orders were explicit on the position, the employer and the taxation income then if none of those conditions apply at the current moment then those orders are not binding anymore.

if you are struggling with payments and your ex is not understanding then yes call CSA and get an adjustment through them then honour that. The good thing about CSA is that the adjustment is always changed based on your current income, but that's about all that's good about the organisation.
 

sammy01

Well-Known Member
27 September 2015
5,152
720
2,894
"So, in my interpretation, the agreement is basically now null and void. Correct?"

Yes, u'm I mean No - oh u'm maybe...

So I'm an English teacher who has been though family law... So my thoughts...the word 'comparable' is subjective. I would not have agreed. I would have wanted it to stipulate a change in taxable income of 20% either way. What does comparable mean? How do you quantify it?

So if you are employed in a similar position in a different country then the thing is still binding. So the moving to a different jurisdiction means the same payments. So the intention there is to make sure you keep paying even if you live somewhere that has a reciprocating arrangement with AU. So again we come back to the phrase 'comparable"

So why might the thing be void? Well child support won't deal with a notation... They will read it but it isn't binding... So in my crazy case the notation stated that we will agree to communicate to child support agency in hours per year not nights.... Why the ex worked out that based on hours she had more time than if based on nights... It was madness and CSA ignored the notation....

So what to do? I reckon there is enough grey here for you to say that the conditions have been met to make the agreement null and void. As you're now in a jurisdiction that collects child support, you can communicate to the ex that you want her to apply for them to collect according to their calculations on how much you should pay. (BTW they have an online estimator - learn how to use it...). Basically, if she wants to challenge your opinion that the thing is no longer valid, she can take it to court...

But - I'd encourage you to call child support agency and ask their opinon on what I've said...
 

AllForHer

Well-Known Member
23 July 2014
3,664
684
2,894
What's the story with how she has calculated the so-called debt?
 

mkr

Well-Known Member
11 January 2016
25
1
124
Hi there,

The 'debt' in her mind is the additional $250/wk I used to pay to contribute to childcare/babysitting costs as per the original agreement, which I have been unable to afford to pay since leaving my prior job. She is viewing that additional $250/wk as an accumulating debt each week, that I need to repay to her.
 

AllForHer

Well-Known Member
23 July 2014
3,664
684
2,894
Right. So, I agree with Sammy01 that 'comparable' is a subjective term, but if she thinks your current remuneration is comparable to your previous remuneration, and you don't agree, then the onus is upon her to take it up with the Court.

What do I think the Court would do? I think it would send you straight back to mediation to try and negotiate a new agreement.

The reality is that you have a clause in your agreement which operates as a prerequisite - that clause must be met before the payment detail can be actioned. That clause is no longer being met, the payment detail no longer applies.

The fallback is not that a debt accumulates until that prerequisite is again met - that isn't in your agreement, is it? The fallback is in the notation - you and your ex negotiate a new agreement that reflects your current position and remuneration package. Notably, that notation which is basically your ex's pathway to securing ongoing support if you change jobs, is not binding. The prerequisite that is your pathway to evading ongoing support if you change jobs, is binding. So, it is a kindness on your part if you choose to follow through on that notation.

What would I do in your situation?

First, I'd get legal advice to clarify your obligations under the agreement.

Then, I'd call Child Support for a child support assessment, since you will be required to the assessed amount as a bare minimum anyway, whether you negotiate a new agreement or not.

And finally, I'd organise a mediation conference to potentially negotiate a new agreement.