NSW Should I settle for this outcome or go to court?

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Mark10

Active Member
10 July 2021
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0
31
Hi everyone,

I separated 12 months ago, and have three kids who reside mostly with their mum.

We’ve agreed a percentage property split (at the mid-range of both lawyers views of where it would settle in court).

My ex wants me to pay for extras above Child Support (towards extra-curricular, school fees and the like) amounting to an extra $8,000 per year. The problem is she wants me to pay this even if I’m assessed as having my kids zero percent of the time and so have to pay the full whack of Child Support.

There’s a massive step change in Child Support payments if I have my kids less than 14% of the time (I’d have to pay $9,000 per year more). I’m hoping to have them a bit more (currently we’re just under) but I’m concerned my ex will manipulate it so my kids stay with me less so she can get the extra $9,000 per year (lifetime additional payments of $72,000). I’m ok paying for the extras, but not if I’m paying the extra $9,000 in Child Support.

My ex wants a Parenting Order to confirm I’ll have my kids enough, but I hate the idea of having to force my kids to come to stay with me if they don’t want to – so I’m not sure this will protect me?

My ex has refused my request to have a condition in our financial agreement stating the extras payments are conditional upon my care percentage being over 14%. I’ve tried but she’s not budging.

I’m wondering whether I should settle or go to court? Or is there another solution?
 

sammy01

Well-Known Member
27 September 2015
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Refuse to pay a cent above CSA amount.
Unless there is an out.Best out? a limited financial agreement. So you agree to paoy more but the terms and conditions AND end period are clealy defined. That will stop you paying $$$$ regardless of time with kids. Usually a limited agreement last 3 yrs. Re-evaluate then
 

Mark10

Active Member
10 July 2021
10
0
31
Thanks sammy01.

We’re using collaborative lawyers and have had four ‘5-way’ meetings with 2 lawyers and a mediator. The two lawyers discuss our case amongst themselves also. I get the feeling both lawyers are trying to get me to bend since I’m the bigger earner.

She earns $75k. I earn $205k. The lawyers have guided us to a 60/40 property split. She’s wants to stay in the family home so I’ve agreed we won’t sell until all our youngest starts high school (2.5 yrs from now).

She’s asking me to pay 40% of the mortgage until we sell (since I’ll get 40% of the profit). Is that reasonable given I don’t live there?

My lawyer has given me the impression that paying half of public school fees, health costs and extra-curricular on top of CS is pretty standard. Is that not right?

And my ex is suggesting if we don’t settle soon she can make a claim on my future work bonuses (10% of my salary). ??

Both lawyers have strongly advised against going to court – but I don't have a clear sense of the pros and cons (my lawyer is pretty elusive on this). Is there any risk I’d be made to pay anything on top of CS as assessed? And while waiting for court would I have to pay towards the mortgage anyway?

Would appreciate any advice.
 

Atticus

Well-Known Member
6 February 2019
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1) Are the lawyers looking at finalising all this by Binding financial agreement or consent orders?
2) Do you currently have a CS assessment? .... What level of care are you assessed on?

She earns $75k. I earn $205k. The lawyers have guided us to a 60/40 property split.
Sounds about right with 3 kids.
She’s wants to stay in the family home so I’ve agreed we won’t sell until all our youngest starts high school (2.5 yrs from now).

She’s asking me to pay 40% of the mortgage until we sell (since I’ll get 40% of the profit). Is that reasonable given I don’t live there?
So you have agreed to not sell the home for 2.5 years.... That means you have to do without the money from that sale for that period... It's a concession on your part, but in addition to that, she (or her lawyer?) is wanting you to pay 40% of the mortgage for that period as well?! .... Reasonable? .... I wouldn't have thought so
My lawyer has given me the impression that paying half of public school fees, health costs and extra-curricular on top of CS is pretty standard. Is that not right?
Put it this way ,.... a normal CS assessment does not include those things ... If the cost of education is unduly high, the payee can apply for a departure from a normal assessment under reason 3 (The costs of maintaining a child are significantly affected by high costs of caring for, educating or training the child in the way both parents intended) ... The point is, no it's not normal or standard.
And my ex is suggesting if we don’t settle soon she can make a claim on my future work bonuses (10% of my salary). ??
Your ex or her lawyer? ... as far as I know, there is no legislative basis for it being granted under the act. Sure they can look at future earning capacity of both in a property settlement, but at 60/40, I reckon that would have already been factored in.
Both lawyers have strongly advised against going to court – but I don't have a clear sense of the pros and cons (my lawyer is pretty elusive on this)...... Is there any risk I’d be made to pay anything on top of CS as assessed? And while waiting for court would I have to pay towards the mortgage anyway?
Courts don't get involved in Child support payments unless your case is not able to be handled by CSA as a normal CS Assessment (rare) If you already have a CS assessment in place, then that answers that. ... If an application to court is made, she may seek interim spousal maintenance or an order that you contribute to mortgage .... Basically, the court would need to be satisfied that she has a financial need, & you have the capacity to pay beyond your own legitimate expenses.... The 40% mortgage she is asking for may be more than a court would grant anyway (who knows) She would be looking at thousands extra to have a lawyer apply to court though.
 

Mark10

Active Member
10 July 2021
10
0
31
Thanks Atticus!
The lawyers have advised we can use either Financial Agreement or Consent Order. We haven’t got to discussing the pros and cons. My ex stated she wants a Parenting Consent Order (because she wants me ‘accountable’. I’ve asked her what she wants it to say - but she can’t tell me!)

My ex got me assessed for CS. They’ve assessed my care percentage as Zero percent – even though I have them every other weekend (just one night atm). Apparently if you have them for less than 14% you’re assessed at Zero? I want to start having them more, it won’t be 50% though (I travel a lot, usually).

I’ve said she can stay in the home for the next 2.5yrs because we both want stability for the kids until they’re a bit older (I figure there’s no real cost to me? I can rent for that long before buying again). She doesn’t seem to appreciate it though. I’ve offered to pay 40% of the Mortgage Principal (on the basis this is paying the mortgage down so I’ll get this money back when I get my 40% share of the sale proceeds, if that makes sense?). Don’t know if I’m being too generous here or not? In any case she’s still demanding 40% of the full mortgage payments (Principal and Interest).

Our girls will be Public School. Fees are around $1000 per child per year. She’s asking me to pay 100% of this (and for a laptop each), plus 50% health and 50% extra-curricular.

Our collaborative process has dragged on and my ex has now started saying things like “if you don’t settle for this I’ve been fully advised what I can claim” and “I can go after your work bonuses” and also threatening to withdraw from the collaborative process and pursue “other means”. Even though we’ve spent over $40k on this process already.

I’m trying to get a handle on what would be a reasonable offer that her lawyer (or her next one) would advise her to accept. She doesn’t have a lot in savings (maybe $20k), so I don’t think she’ll want to draw this out.

Advice greatly appreciated!
 

Immismum

Well-Known Member
11 May 2020
19
2
79
With regard to child support, given you will be paying a substantial amount, I’d be offering that you will guarantee to pay the percentage of the costs in line with your percentage care.
So if you have the kids 50% of the time, you will pay 50% of the costs, as after all you’d be paying far less child support. If you have the kids 0% of the time, you pay 0% extra over child support, as you’d be paying far more child support.

I have no idea how much the mortgage is, but given she wants you to pay 40% of the mortgage, I’d be offering that if she pays 40% of the market rent to you. After all she is using your part of the house and you aren’t able to. She may then settle for the principal payments. After all you are going to have to rent a place that is able to take your girls even if they don’t live you all the time.
 

Mark10

Active Member
10 July 2021
10
0
31
Thanks Immismum, good points.

My ex seems to be digging her heels in and prepared to walk away from collaboration (either that or bluffing to try to force me to concede). Does anyone have a view about the costs and risks involved in taking it to court (just for a Property Settlement, I don't feel we need a Parenting Order as things are amicable on that side, at the moment at least).

Should I be prepared to give away in 'extras' above CS what I might otherwise pay in legal fees to get me to court (and perhaps a bit more to avoid the delay, uncertainty and stress)?

What would going to court entail? (It sounds complicated and fraught with uncertainty, and my lawyer suggested I'd be waiting over 2 years for a hearing).
 

sammy01

Well-Known Member
27 September 2015
4,775
691
2,894
Pay child support. Nothing else.
Story time - I agreed to pay half medical and keep the kids on my health fund. The ex started giving me reciepts for chinese massage. She was having the massages, but telling the supplyer that she was actually my daughter.
Story time - Ex takes kids to dr's. Gives me the reciept. But doesn't mention the medicare rebate. So wants me to pay half of the full amount.
Moral to story - Weekly arguments for years can be avoided. Pay child support and IF things calm down offer to pay a bit extra. But don't get forced into it as it will be used by the ex at every opportunity.

40% mortgage? Good idea - but you need a clearly articulated plan for how the house will sell in 2 yrs. So a bad plan would see you stopping the payments in 2 yrs. She can't refinance and refuses to sell. What THEN?

Mate you're being nice. She cant see that... Gonna walk away from collaboration? Challenge her on the bluff. Yes dear, you're right. Let's lawyer up and get the judge to decide. That will be more fair right? My suggestion. A letter from solicitor.
Dear ex,
This offer expires in 21 days.
Offer to pay 40% of mortgage. Include something about how this offer is contingent on her agreement because obviously, you're incurring legal costs here and ultimately, paying mortgage and rent and legal bills is not sustainable.
Child support only, nothing else - maybe offer to keep the kids on your health fund.
Clearly defined terms around when you see the kids. (btw how old are the kids?)

She is digger her heals in? Fark... She earns $75K? you earn $200K. Your war chest to fight this is bigger than her's. BTW NEVER EVER take legal advice from the ex....So when she tells you she has "been fully advised what I can claim" - she is talking s**t. She thought she was gonna screw you over like Agelina Jolle screwed over Brad Pitt... (I'm sure you're good looking) but you don't earn Brad Pitt kinida $$$.

You offering to keep her in the house for 2 yrs has not gotten even a tiny wincy brownie point? FARK - Mate it is a good offer. (but I don't know the whole asset division plan - but that bit alone is bloody reasonable).

Final thougth - you are being reasonable. She isn't. In my experience, things tend to settle down after a few years. But for the minute, I reckon you make a clearly defined offer (be prepared to move a little) but don't be scared of court. The ball is in her court (excuse the pun). Either she starts being reasonable OR you will need to get someone else to make a decision who is reasonable. That person's name? Your honour...
 

Atticus

Well-Known Member
6 February 2019
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2,394
The lawyers have advised we can use either Financial Agreement or Consent Order.
Just be aware that if you use a BFA, anything about child support payments in it could be accepted as a binding CS agreement... A BCSA is near impossible to amend or set aside if circumstances change.

If it was me, I would be paying CSA assessed amount only
My ex stated she wants a Parenting Consent Order (because she wants me ‘accountable’. I’ve asked her what she wants it to say - but she can’t tell me!)
They would actually be more about keeping her accountable as in making them available to you for the ordered visitation times.... On that, 1 night a fortnight is rubbish... The norm is for 2-3 nights a FN plus half of school holidays & special occasion days .... That's pretty much what the court considers to be the minimum amount of care for a parent to maintain a meaningful relationship... You should be asking for that as a minimum.

As for mortgage... If you can afford to pay the 40% all good, but there doesn't seem like much give & take going on .... Of course at a 60/40 split, when it does sell, she'll also be getting 60% of the increased equity that your 40% over 2.5 years has paid for... not a bad deal for her...

Whatever deal you finish up with, make sure it is airtight in terms of timelines for the sale of house, what is to happen if those timelines aren't met etc.
 

Mark10

Active Member
10 July 2021
10
0
31
Thanks, great advice. My kids are 9, 11 and 14.

I hadn't thought of the risks of signing up to pay for 50% gap medical. I think I'll offer to pay 100% Health insurance for the kids and she can pay the gaps.

Neither had I considered the risk around her refusing to sell in 2.5yrs time. Our mortgage payments are considerably lower than rental costs in the area and she'll probably need to rent when we sell so I think there's a real risk she'll say "screw you, I'm not selling" as we approach the agreed sale date. Strikes me as a hard one to lock down. Any good ideas? Could I put in the agreement a $ penalty for her if we miss the deadline? Would getting a Financial Consent Order (rather than BFA) protect me more - i.e. quicker to get a court to force her to comply if she does renege?