7 Comments Family & de facto law, financial agreements, consent orders
The written confirmation may help prove that she had an intent at that point. Unfortunately after discovering how it may impact on her financially she has had a re-think. As frustrating as that is for you, she is entitled to do that.
It doe's at least go a good way towards proving that she has no problem with you having that level of care, so to that degree it is an advantage if she started to now argue that she doesn't believe it would work on a practical level. Which would suggest that the issue here is just purely about money.
I guess to avoid court one option may be to find out how much her income is going to be impacted by the 5 night care & offer to cover half her loss per mth & enter into a LIMITED child support agreement to that effect (not a binding agreement)
Other option is to address it via your property settlement as a s75(2) adjustment. Does your offer include a s75(2) adjustment at this point?
s75(2) refers to that section of the family law act & deals with spousal maintenance. Specifically the areas noted above by fatho2.
But before looking at that it's probably worth establishing your current level of care, so what amount of overnights a FN & school holidays do you currently have & how old are the kids.
Kids aged 18mths, 3 and 6. 122 nights a year with all three but only 80 with the youngest according to the parenting plan (she hates it when I was dropping off the youngest and he'd start crying.) So as long as I don't tell child support she is ok with it. 122 nights is 4 per fortnight, Wednesdays and alternate Sat,Sun and half the holidays. I'm a school teacher so that is easy to manage.
Property settlement. 20% of my super which is $16 000. She keeps her super $8000. When the house sells she gets the proceeds $100 000 if she is lucky. Her car $10 000 my car $5000 we keep our own cars. I get the shirt on my back. She brought $80 000 into the relationship I brought not much. I worked for the duration, she didn't, but she did be a stay at home mum.
Thanks for your time guys.
Okay, It doesn't appear to be a large nett asset pool so lets leave aside the s75(2) adjustment option for now.
The level of care you currently have (122 nights)is at the higher end of 'regular' care. Your proposal of 5 nights a FN will tip it over into the lower end of 'shared' care. The mother needs to realise that your extended care will mean that she requires less in actual dollar terms. That said, without her agreement you only have limited options.
You either go the 5 nights, suck it up & continue to pay more CS than you should be, or you take the matter to court. Personally, I would be avoiding the court option. The court won't be overly interested in CS, that is dealt with via the CSA, & while it's true you have documented proof of her approval for 5 nights care, there is no telling what games may be played in the interim that may alter that & make that arrangement impractical.
At this point, for her part, she wants some certainty about her income. That's all very well, but for your part, you want certainty about contact. To that end you MUST have either a consent order (best option) or a formal parenting plan that states very clearly that you are to have 5 nights so that she can't just withhold contact on a whim.
My view is that you try to reach a compromise by suggesting that as long as she is willing to include your 5 nights into consent orders, you will agree to enter into a limited CS agreement that will give her the certainty regarding income that she wants at this point. In order to have a CS agreement you must have an assessment in place with the CSA (I assume you have)& the amount you pay must be at least the amount you would be required to pay under a normal formula assessment.
A limited CS agreement last for 3 years, at which point you can agree to renew it for another 3 years, or go to a normal formula assessment. It can also be ended in writing at any time during the thee years if either parent's income varies by 15%.
This way, you have your 5 nights in orders should she start contravening. She has some certainty about income that retains a level that she is happy with. The important thing for you is that you get the 5 nights formalised so that's probably worth the extra payments for a while.