QLD Impending Proceeding Regarding Breach of Binding Child Support Agreement - Thoughts?

Discussion in 'Family Law Forum' started by Confusedandannoyed, 11 October 2018.

  1. Confusedandannoyed

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    Hi

    I am hoping to get some help and independent perspectives on my situation.

    My ex-husband and I have been divorced for 5 years. I have two children aged 16 and 13 and I have full time care of both my children as my ex-husband no longer wanted a family and does not live in Queensland. My ex-husband has not seen the children for 3 and a half years and has not spoken to the children for 3 years.

    When we split up, we went to familycourt and ended up with consent orders dealing with the financial split of assets etc and a Binding Child Support Agreement (BCSA). It cost me close to $20000 to achieve this outcome .

    Both of us earn a good income, however my ex husband earns more than $100000 more than I do annually. Our BCSA outlines a set amount of child support to be paid each fortnight, agreement to pay for half the children's private school fees, agreement to pay half of the children's representative sports costs, agreement to pay half of my daughters dancing costs, half of schooling expenses such as school uniforms and stationary, and a children's clothing allowance to paid half yearly.

    My ex-husband is very good at paying the child support component of the BCSA but I really have to struggle to get him to abide by the rest of the agreement.

    The BCSA was made 5 years ago before the children were in high school. The situation I have now is that my ex husband is refusing to pay half of my daughter's private school fees. He is claiming that we agreed that he only pay 30% of her school fees but does not have any evidence of this. He is claiming that he only agreed to the school she goes to on the basis that he was only liable for 30% of the fees. There was never an agreement, but I accepted a payment of 30% for term 1 and did not chase him for the rest in email or text and therefore have no evidence that this was disputed. I did send enrollment forms and all schooling information.

    He did not sign the enrollment forms but did pay half of the enrollment acceptance fee. I engaged a lawyer to chase term 2 and 3 but he has insisted that there was a verbal agreement that I would cover 70% of the fees and my lawyer believes it could come down to a credibility issue given I have no concrete evidence of there not being a verbal agreement and he has no evidence of there being a verbal agreement. My ex husband's lawyer is claiming that the BCSA contains no agreement on schools or fees and therefore my ex husband is not liable to pay 50% as there are cheaper schools my daughter could attend.

    My ex husband has not paid my daughter's dancing fees, my son's representative sport fees or the kids clothing allowance for the last 8 months.

    My lawyer has suggested that I get a barrister's opinion before commencing legal proceedings but this is going to cost a minimum of $1500. My view is that I believe my lawyer is a little risk adverse and I have already spent a huge amount of money obtaining the agreement. I cant afford to cover my 70% of my daughter's schooling but have been told that the matter could end up costing $15000 if we go to court. I am really tired of chasing my ex husband for payments that are set by the BCSA and just want him to do the right thing.

    Do you think my logic and case is sound or should I just give up fighting and move my daughter to a different school?
     
  2. Rod

    Rod Well-Known Member
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    Would you be better off with a standard Child Support Assessment or remain under your BCSA? eg: Can he be frightened by tearing up of the BCSA and forced onto CSA?

    Sounds like he is in breach of the BSCA and you now have a choice to make:
    1. Scrap the agreement and move to standard CSA, or
    2. go to court, or
    3. say stuff it, it is all too hard, he wins.
    Some of this is legal, some personal preference.

    Assuming he still refuses to pay, even after it being suggested CSA may get involved, what is your prefered scenario?
     
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  3. Confusedandannoyed

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    Hi Rod

    I am better off with the BCSA. He is afraid of CSA so he pays the component of the BCSA that CSA can enforce. I think my preference is to go to court but am afraid of loosing the case and encouraging his behavior to get even worse. I am also concerned about the costs associated with going to court
     
  4. sammy01

    sammy01 Well-Known Member

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    It would appear that he is paying more than the CSA assessed amount. My concern for you is if it went to court, the court could determine that the original agreement goes beyond the requirements of CSA - which is all he is obliged to pay and as a result put the BFA aside and make a new order.

    Lots of money spent for no good result. Without his signature on the enrollment forms, you cant request the school go after him themselves... But an avenue worth pursuing, because you could show the school the BFA and as them to accept that as grounds that they should bill dad for half school fees.

    The other stuff like sports gear? give up. The only way to enforce that is through court... It will cost lots. Cause you stress and you might not get the result you're after.
     
  5. Rod

    Rod Well-Known Member
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    If he is clearly in breach of the BSCA you'll likely win at court and you also seek a costs order against him.

    Talk to your lawyer about this matter. I don't think CSA or Family Law play a part in the BSCA - other than to make sure it is legally binding. BSCAs do not have to be fair.

    You have a legally binding agreement, he breached the agreement. Court may not consider anything else, so have your lawyer explain the process.

    The first step will be a letter demanding performance as per your deed.
     
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  6. LouiseThomas

    LouiseThomas Well-Known Member

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    If you can't afford 70% of the fees and the expense of court is too much I would move my child to another school.

    That's just my opinion and what I would do. The fact that he never signed the enrolment form could work against you. I had a friend who tried to get her ex to pay half fees but he didn't sign the enrolment so it was thrown out as there was no intent he agreed to that school.
     
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