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VIC Will Other Legal Proceedings be Affected by Divorce Application?

Discussion in 'Family Law Forum' started by xiannypink, 7 July 2016.

  1. xiannypink

    xiannypink Active Member

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    Hi. I'm new here but I have tried other threads.

    My case in a capsule--

    1) Hubby works in Australia as an operating nurse (former Filipino converted to NZ citizenship), we married in the Philippines. He filed for an annulment in 2009, found out about it in 2011. Judge who granted annulment was dismissed due to approving anomalous annulments without court proceedings. I have filed for an investigation for the legality of the annulment and it is now under investigation

    2) We have a 13-year-old autistic son who was only 3 years old when he left. They met again (overnight) when the child was 9 years old. He promised our son that he will communicate with the boy more frequently. Since then, no communication was made. My son was hurt by the abandonment and now refuses to talk about his father. When we mention his father's name, he reacts violently, so we stopped.

    3) Hubby filed a divorce in Australia and wants me to sign. I refused since I have instigated an investigation to our annulment. This will contradict my legal actions. I know he can still file for divorce and will get it even if I don't sign anything. So I can't and won't sign any documents.

    4) The anomalous annulment we had did not have any provisions for child support. My husband only sends whatever amount he decides to send whenever he decides to send. He does not even pay hospitalization and medical bills of our child. When I asked, I am usually bombarded with insults and emotional blackmail (like stopping the allowance he sends for the child), etc. So I also filed for child support with CSA Australia (since Australia and the Philippines have a reciprocating agreement).

    I am unemployed and with an orthopaedic disability as I had a vehicular accident. I was advised by our central authority here to wait for the assessment from CSA.

    5) Now my husband wants to make a binding financial agreement - and he told me to consider his expenses (like phone bills, internet, car, house, 3rd party insurance, apartment unit rentals he is paying where he and his GF are staying, etc) when I asked him to help me pay for our son's hospital bills. All I got were insults and threats that since I am disabled, he will take the child away from me.

    He wants me to consider his situation now, but when I asked him to consider his son's needs, we only get insults.

    I think he is rushing the BFA because it is needed by the court prior to granting his divorce(?)... We have talked about the needs of the child but what he is placing on the BFA is lower than the estimated assessment of our central authority here.

    I'm not sure if the CSA assessment will be lesser or higher than the amount on the BFA. I would like for CSA to get involved, to make sure he will not renege on his child support.

    My questions now:

    a) If I sign the BFA and hubby submits it to court and this will represent child support as court mandated, will my assessment from CSA no longer apply? Can I still ask CSA to collect if hubby fails to pay?

    b) If I don't sign the BFA, will this affect his divorce application? And subsequently, court mandated child support?

    c) After 4 years since visiting his son, he called one night to talk to him but my son shouted "I hate you, Papa!" and became hysterical. I was not around, so the people at home had a hard time calming my son down. The reaction was unexpected and caused too much stress on my son.

    The hubby said I indoctrinated my son. That's his opinion but I know I never did - in fact, I always tell him his Papa sends him his allowance so he can go to school, etc. I cannot control my son's feelings, thoughts and actions

    Now, my husband wants to visit my son once or twice a year. Should I advise him to keep that on hold first until the child has calmed and accepted the eventual re-entry of his father in his life? I don't want the hubby to use this against me, preventing him from maintaining a relationship with my son. I am just worried how this will affect my son. You see, my husband has shown extreme parental disinterest for the past 10 years and now just wants to get involved. I think this is also an advice from his solicitor.

    d) Last question, if I sign the BFA and after using it to his advantage - can my husband not provide me a copy of the stamped/court registered BFA and divorce papers approved by the Magistrate? I have no way of getting copies from my end here.

    e) What happens to my CSA application if the divorce is granted with child support provision?

    I apologized for this long entry and I am hoping the experts here can give their opinions, too. I would really appreciate it.
     
  2. AllForHer

    AllForHer Well-Known Member

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    Don't enter into a binding child support agreement. Being binding, there is absolutely nothing you can do if your ex starts earning a lot of money, ordinarily entitling you to a higher amount in child support. Since your employment capacity is limited, I would say that's a very real risk that you definitely should not take. If the Child Support Agency can manage the whole process for you, you should let them - it limits the likelihood of conflict and unwanted communication between you and your ex.

    If you do make that mistake though and sign the agreement, then you can contact the Family Court Registrar for a copy of it.

    I would argue that the threats to take the child are just that - threats, nothing more. He has no relationship with this child, and he lives in a different country, the likelihood of an Australian Court granting custody is 0. I'm not sure how family law works in the Philippines, but what are the odds of him actually coming and removing the child from you, particularly if the child doesn't already have a passport and if he does, you have control of it? Fairly low, I would say. So, try not to be intimidated by his threats. In literally 99% of cases, the person making the threats is the least likely to act.

    Finally, child support and the divorce application are separate matters in Australian law. His application for a divorce will have no bearing on the child support matter, and vice versa. Your CSA application will proceed regardless of the divorce application.
     
  3. xiannypink

    xiannypink Active Member

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    Thank you so much, AllForHer. I am contemplating on not signing the BFA :)... Some more questions, please?

    1) If the divorce pushes through, will there be a provision for child support for my autistic son? I'm sure my husband will never put it in his application for divorce that our son is autistic. He mentioned that the court does not allow "infinite support" so my son will only be supported until he is 18 years old. When I told him that I don't think its true, he said the maximum age is 30. Which is which?

    Autism is a life-long disability and my son will not be able to fend for himself. I am hoping to find a job, too, to help him, but in the Philippines, if you're 50 years old, you are no longer hirable. So I doubt if I can have a change of circumstance.

    2) Which would give a better assessment for child support - CSA or the court? Which will be able to protect my son's right to CS more - CSA or the court?

    3) My husband is saying that if I don't sign his BFA, his divorce will not be granted right away as he has to make a provision for the child support and that the BFA is his provision. The court will accept the BFA and will be incorporated in his divorce order. How true is this?

    4) I do not know how much he is earning but he said it is only about $2500 a month. He is an operating room nurse so I cannot possibly believe that. Do you have an idea or an estimate how much nurses earn? In Tasmania, I think they earn around $5000 a month or more, according to a friend.

    5) Can someone please give me an estimate as I don't know how to use the CSA calculator - I have 100% care and I am unemployed with an orthopaedic disability.

    I have called up CSA and they told me they have not received my application yet. They have instructed me before that my application should be coursed through the central authority in the Philippines (the Office of the Solicitor General or the OSG). The OSG has informed me that they have mailed it last May 2016. So I guess it's gonna take months to reach CSA.

    6) How does CSA send payment if ithe agency collects? Do they deposit in a bank account or do they just issue check?

    I apologize for my ignorance and will appreciate any response for this matter.
     
  4. AllForHer

    AllForHer Well-Known Member

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    I'll just answer these questions one by one.

    1. So, I understand that in some countries, a divorce decree entails everything, from child care arrangements to child support to property settlement, but in Australia, this isn't the case - a divorce application and a claim for child support are two totally separate matters. A divorce decree literally only orders that a divorce is finalised. It doesn't in any way refer to child support.

    Child support is instead governed by the Child Support agency, which is a branch of the Department of Human Services. You contact CSA to request a child support assessment, they will take information from you about your income and how much care you have of the child, then they will track down your ex and get confirmation from him. The CSA will inform itself of your ex's income by accessing the latest of his tax returns through the Australian Taxation Office. It will then apply a formula to determine how much he is obliged to pay, and if you're wise, you will get them to collect on you behalf, and they will then deposit the amount paid into your nominated bank account.

    Your ex is correct in that child support obligations cease upon the child attaining the age of 18. Thereafter, you would need to apply for further payment on grounds of special circumstances. Honestly, I would not count on a positive outcome for an application to extend child support. Without in any way undermining the impact of autism on both you and your child, it is an illness that requires support, but it isn't an illness that requires indefinite surgical intervention or specialist treatment. Thus, it would likely be expected that you and the child seek financial aid through government-funded initiatives such as disability pension and carer's allowance, rather than through child support.

    2. I don't know which would give a better assessment for child support, but what I do know is that you must go through child support first. The court will not hear an application for child support, it will only applications for stays of child support assessments, and appeals about objections to child support assessments coming from the Administrative Appeals Tribunal.

    3. Forgive me, but it is worrying that your ex is linking a BFA to the divorce. It sounds suspiciously like he is trying to dupe you out of a property settlement by having you sign a BFA instead.

    To be clear, a BFA is binding financial agreement which can potentially bar you from pursuing your entitlement to your share of the assets under a property settlement. A BFA, or lack of a BFA, won't slow down a divorce at all; the divorce will proceed whether there's a property settlement or not, and again, it won't be mentioned in the divorce decree because Australian divorce decrees don't cover anything except the divorce itself.

    But if you don't sign a BFA, then it means you have a year after the divorce is finalised to actually apply for a proper property settlement and make a claim on the assets to which you are entitled.

    4. I can't comment on earning capacity of nurses. Sorry.

    5. The calculator you want is here: Child Support Estimator

    Launch it, hit 'Next' and then simply answer the questions.

    6. They usually request a nominated bank account and deposit it monthly to you.
     
  5. xiannypink

    xiannypink Active Member

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    Once again I thank you for this. I would like to post the BFA he sent me, if I may? I am just wondering why there is no provision on the agreement on what will happen should he fail to pay the child support - only that he can notify me if there will be any delays on his payments. What's my protection and how can I claim if he fails to pay? He wants me to agree on the BFA and not go through CSA, actually, citing things like he has to pay for phone bills, internet, house mortgage, apartment unit he shares with his GF, 3rd party insurance, his health insurance, cars, etc.

    He did mention though that he will increase the support 15% every 3 years and the term he gave was until the child reaches the age of 30 years (17 years from now). He is amenable to pay $537 a month for the child's needs to include tuition and other school expenses.

    And the property that we have here in the Philippines will be turned over to my son under my guardianship when mortgage has been fully paid. I have leased this property to pay the mortgaged since he stopped sending payment for the mortgaged. We are now living with my parents so we will have shelter, electricity and food. No mention was made about his share in the mortgage. I would like to go back to our house because I fear that by the time this will be turned over to my son, it will be beyond repair due to mishandling by the tenants.

    I can't post the BFA here :-( ... Like you, I am also doubting his intentions on why he is rushing me to sign the BFA. I think he wants me to do the BFA because he knows that if he renege on the agreement, I will find it hard to collect and to file a case in Australia since it was indicated "that each party irrevocably submits to the non-exclusive jurisdiction of the courts of the commonwealth of Australia".

    Is it also possible that he finally agreed to have this BFA drawn (I have sent him a previous agreement but he refused to sign and gave me all kinds of threats) so I won't involve CSA? I'm guessing there's something in between the lines here and signing this would be like walking to the gallows blindfolded. My gut feeling is telling me something I can't seem to pinpoint now...
     
  6. AllForHer

    AllForHer Well-Known Member

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    I'm having trouble understanding why he would want to avoid CSA, but perhaps it's because he's not fully disclosing his income to you, but he would have to disclose it to the CSA because it's retrieved directly from the ATO.
     
  7. xiannypink

    xiannypink Active Member

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    Yes, I think that's the reason. For 9 years he has been sending CS according to how much he wants to send and when. We can't ask for anythng more. It was a fixed minimum amount and it doesn't increase even when the child was growing up. That's because there was no provision on the fake annulment he had made.

    I'm glad I was able to bump into forums like these and had an idea what to to do. Somebody in one of the forums suggested CSA and I tried it. Now I'm just waiting for them to contact me once they receive my documents.

    I guess my son was supposed to receive more than what he is sending, that's why he doesn't want CSA to get involved. He even told me that CSA takes too long to process and that he will stop sending CS until he received notice from CSA. I told him to do that. A day after, he pleaded and ask me how much he should send for the child. I jokingly told him, double the amount -- and he agreed? Would you believe that? He can afford to send double but he made his son grovel every time he needs something.

    Unfortunately, my hands are tied. I'm planning to wait for CSA still. If the amount they assess is lower than the doubled CS, good for him. If it's higher, then good for my son...
     
  8. xiannypink

    xiannypink Active Member

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    Hi,

    Just an update. The authorized agency in my country has sent my application for assessment to CSA/DHS last May. However, when I called them in June, I was told they haven't received it yet and was advised to ask the agency to re-send it by email...which the government solicitors did two weeks ago...

    I was surprised to receive an email from my husband that CSA has gotten in touch with him and they have already deducted from his salary, hence, he will not be sending the support to me this month as CSA deducted it...

    My questions now are:

    1. Is it possible for CSA to act on this without me and my solicitors knowing the outcome of the assessment?

    2. I have not yet decided whether we will go for private collect or agency collect, so how can CSA deduct from his salary?

    3. I understand that I am given the choice to pick an option. If private collect, my husband and I can decide how the support will be sent. If he fails, then I can apply for agency collect...then CSA will have it deducted from his employer...is my understanding correct?

    4. My husband mentioned that CSA will collect AUD3000 as backpayments from February to June because his assessment was supposed to be AUD1000 and he is sending only AUD300 per month. According to him CSA, based it from his income last year as an organ transplant nurse. Is this true that there's a back pay since I know CSA can only collect upon receipt of application?

    5. He also mentioned that because of the stress this gave him, he applied for a part time job in lieu of the regular one, June of this year and CSA will just base it from his new income.So that means he will only pay AUD300...is this salary sacrificing?

    6. I was surprised on how fast CSA acted on my case...Can someone please explain to me on how CSA does the collection and how fast is their usual action?...

    7. If indeed they have deducted from my husband's salary, how soon can they send the support since I am here in the Philippines? Will they send it by check, through post (a disadvantage because Philippine postal service is snail-paced and there's a big possibility it will get lost in transit or someone can encash it), or do they remit it through a bank account I will have to provide them with?

    I hope someone can go over these questions and give me some answers. Will really appreciate it.
     
  9. AllForHer

    AllForHer Well-Known Member

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    Okay, so my opinion is to call or email the CSA directly to have all of these questions answered. Information is here: Contact us - Australian Government Department of Human Services

    I also strongly suggest organising collection through CSA, rather than through your ex. This ensures you will have a track record of when he does and doesn't pay, which is something you won't have if its private collect.
     
  10. xiannypink

    xiannypink Active Member

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    Thank you so much AllForHer...i have lodged my query through the info you gave me and I hope i will get a reply from them...Do you have an idea how CSA sends the payment?
     

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