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Notation in Consent Orders

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Twilight View Drop Down
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  Quote Twilight Quote  Post ReplyReply Direct Link To This Post Topic: Notation in Consent Orders
    Posted: 09/January/2018 at 07:31
In the consent orders I have a notation stating:

   My Ex and I agree to enter into a Limited Binding Agreement where I am to pass the child support assessed amount and the children private school fees.

Now my Ex lawyer wrote up the agreement and I signed it and it was sent back to my Ex via her lawyers. However, I don't know what happened to the agreement after this. It was never lodged with Child Support.

Now out finances have changed and I am trying to get my Ex to pay part of the school fees. I put in a change of assessment but it was rejected due to the notation in the consent orders (I didn't think notations were legally enforceable?).

So the question is what can I do about this. With a Limited Binding Agreement I could have cancelled it when a change in the assessment of more that 15% occurred (which it did). However, since no agreement was lodged with child support I cannot get it cancelled. So it seems I am stuck since the CSA shall use the notation but I have no way to vary or cancel the agreement.

Any ideal how to vary this? Could I somehow get the Ex to sign a new Limited Binding Agreement?

Thanks

rannii View Drop Down
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  Quote rannii Quote  Post ReplyReply Direct Link To This Post Posted: 09/January/2018 at 19:36
The notation is proof that when the child was enrolled you agreed to pay 100% of the fees.

For child support to collect (or reduce your payment) the fees your ex needs to accept the situation and agree to pay half the fees.

Child support cannot help you.

Unless your ex is nice, your chances really are very limited. You will probably need to go to court etc to have this removed, and it may be judged if you had the money for court - then you probably had the money for the fees.

emca01 View Drop Down
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  Quote emca01 Quote  Post ReplyReply Direct Link To This Post Posted: 11/January/2018 at 14:01
I don't understand what you mean by:
" My Ex and I agree to enter into a Limited Binding Agreement where I am to pass the child support assessed amount and the children private school fees."

It was a limited agreement? then it expires in 3 yrs... BUT a notation in consent order is not a limited agreement, it is just a notation and you're right, is not legally enforceable... I had one in my orders that related to how CSA should be calculated... CSA did not accept it... The ex appealed it and took it to AAT (admin appeals tribunal) but failed to have the notation used.

Is CSA collecting the $$$ based on the notation? if so you should appeal and take it to AAT

Twilight View Drop Down
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  Quote Twilight Quote  Post ReplyReply Direct Link To This Post Posted: 11/January/2018 at 15:20
It is the Consent Orders that has the notation in question.

My Ex lawyer wrote up a Limited Binding Agreement which I signed and sent back. I was expecting for my Ex to sign it and lodge with Child Support. However she never did this. There was other statements in the Limited Binding Agreement which would have provided relief to me in the current situation but as the CSA do not have a signed agreement they shall not act.

I then tried to lodge a change of assessment using clause 3. The result of that change of assessment was that they disallowed the change since the notation in the Consent Orders stated I would pay the private school fees.

So the issue I have is that I cannot get a change of assessment because of this notation. I also cannot cancel it using the normal rules associated with a Limited Binding Agreement as it was never lodged. So as far as I can see I am stuck with no way out.

Personal I think the CSA is not reading the notation correctly. It say 'I will entering into a Limited Binding Agreement' and it then states what that agreement shall have in it. So I would say if they don't have the Limited Binding Agreement then they cannot apply the next part of the notation.

rannii View Drop Down
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  Quote rannii Quote  Post ReplyReply Direct Link To This Post Posted: 11/January/2018 at 18:01
Whether the limited agreement was in place or not is irrelevant.

It provides the proof that the children attended private school on the basis that the father pay the fees 100%. Therefore, when though agreement they will not reduce your fees by the portion of private school fees (essentially forcing the mother to pay half), or increasing the mothers portion to you.

Your options are:

1. Have the mother agree that she will pay half the fees and provide this as evidence to CSA to make the necessary adjustment.
2. Remove the children from the private school, and send them to state school removing the issue of you paying the fees (check the legalities of doing so first).

Csa cannot make an adjustment in relation to private school fees unless it is clear they both parties intended to educate the children in that way, and there is nothing otherwise in place which will stop 50:50 split of those fees.

Whether legally binding or no, the notation stops CSA being able to force your ex into paying 50% of school fees.

emca01 View Drop Down
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  Quote emca01 Quote  Post ReplyReply Direct Link To This Post Posted: 11/January/2018 at 18:37
I would appeal the CSA determination and if that fails apply to AAT for a review..

Just checking my understanding... So you're paying the child support as assessed by CSA and all private school fees as per notation? IF so then I think you're screwed... You've signed a document that says it is your intention to pay child support PLUS school fees... Gee did you get legal advice on that?

You're not gonna like this... Here is a link to the CSA rules about 'notations'
http://guides.dss.gov.au/child-support-guide/4/3/3#ordersandnotations

The last bit is a concern - the bit about how a notation could form part of the evidence...

Did the limited agreement express that you would pay the school fees in exchange for reduced child support? I'm still trying to get my head around the issue here....

I reckon if you cant get a decent outcome outa AAT then informing the school that you will be ceasing payment and will be withdrawing the kids might be the only financial option... Obviously, not the preferred one for the kids...

Twilight View Drop Down
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  Quote Twilight Quote  Post ReplyReply Direct Link To This Post Posted: 11/January/2018 at 20:24
Don't I wish it was only the private school fees and the CSA amount. It is also all medical bills (only $15,000 last year).
As for legal advice, yes I had legal advice, however I was always told by my lawyer that notations are not enforceable. That seems to be an incorrect statement when it comes to the CSA.

I guess I will just have to live with it. It is good that my eldest is in grade 12 this year. And then only another 2 years after that for the other two children.

I am just amazed that the law says one thing but then the CSA does things a different way.
I guess I could lodge with the AAT. I have only one more day before I am out of time. However it sounds like I don't have a leg to stand on so I might as well just move on with life.

emca01 View Drop Down
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  Quote emca01 Quote  Post ReplyReply Direct Link To This Post Posted: 12/January/2018 at 07:00
nope - I reckon appealing to AAT.
I'd be looking under this rule...
http://guides.dss.gov.au/child-support-guide/2/6/17#factorstoconsider
So is the decision just and equitable?
But also the income and earning capacity section... I think you've mentioned that your financial situation has changed? how so?

Yep CSA don't seem to follow their own rules BUT that is why AAT is there... Mate lodge the appeal.... You can always withdraw it down the track... But if you don't lodge it, you're effectively accepting the situation...

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  Quote Twilight Quote  Post ReplyReply Direct Link To This Post Posted: 12/January/2018 at 07:31
For the financial change, originally my Ex was not working (which was why I accepted the notation since I knew she could not pay). However she then started working and is (or was) earning a reasonable wage while I am having to increase my home loan to pay for everything.
However, during the handling of the Change of Assessment objection she has informed the case office that her job shall be ending (this is what I was verbally told by the case officer). Interesting is that I have yet to see a new change of assessment due to that statement. So because of that statement and what the notation say, the case officer found it Just and Equitable to not check on what assets my Ex has.

emca01 View Drop Down
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  Quote emca01 Quote  Post ReplyReply Direct Link To This Post Posted: 14/January/2018 at 09:02
That is dumb.. sorry - job ending? big deal... it shows capacity to earn HENCE once that job ends she has the capacity to get a similar paying job.

appeal the thing... There isn't a clause that says ' but I might wind up unemployed later..."

rannii View Drop Down
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  Quote rannii Quote  Post ReplyReply Direct Link To This Post Posted: 14/January/2018 at 09:17
If the OP wants CSA to collect private school fees from the other party - then there is nothing to appeal.

The OP has to show (under reason 3) that there are significant costs to educate the children due to an AGREEMENT between the parties to so do.

Due to the notation, the evidence the CSA have is that the agreement was that the children are educated in that manner based on one party solely paying the fees.

So, it’s nexeasary to have the notation removed and maybe replaced by “ org parties contribute equally”.

If the OP doesn’t meet the criteria of the first step of change of assessment, they do not go to the next step of affordability.

You solicitor should have advised you more thoroughly, and prompted questions of “what happens if she got a job”.    A better worded clause would have been “where the mothers income is less than Xyz, the father pays the fees, otherwise the parties meet it equally”.

This will show clear intent.

It sux that you are caught be technicalities. Keep asking the morher to contribute. Remove goth children, of go “i did agree to pay, so that’s what I will do”,   Don’t let her change of circumstances get to your head.


As a side not, the change of assessment due to capacity to work isn’t ready to get. Firstly as as primary career, reducing your number of hours to better situatate yourself to care for the kids is OK. Also, having a change of career is ok.   The first hurdle is pass is “intended to reduce childsuport”, which is very subjective and hard to prove.

Twilight View Drop Down
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  Quote Twilight Quote  Post ReplyReply Direct Link To This Post Posted: 14/January/2018 at 19:56
My lawyer and I did discuss about my Ex obtaining a job. Our reasoning why this would be no issue is that with a Limited Binding Agreement there is a 15% change exit clause. If our nominal assessment was to change by more that 15% then either party could write to the CSA and request the agreement to be canceled. This has now happened twice. But the issue is that since my Ex never lodged the agreement I cannot cancel it, so they fall back on the notation.

Now you mentioned something about the primary carer. The agreement with the children is they swap every week. In theory this means the care ratio would be 50/50, however the CSA is attributing the odd day in the year to my Ex and hence I only have 49% care. However (I haven't mentioned this to the CSA) there were some special days stated in the orders which mean I have the children two extra days. In theory I think that make me the primary carer (I assume primary care is based on time?).
If I did get the CSA to update the care ratio would that make it easier to prove the not working to capacity clause?

One other thing, do you think it would be possible to get the notation dismissed in three years from the date the Consent Orders were signed? As the notation states we where going to do a Limited Binding agreement, and these agreement can be cancelled after a three year period, doesn't that mean I can start having my Ex help with the school fees and medical bills after this time?

rannii View Drop Down
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  Quote rannii Quote  Post ReplyReply Direct Link To This Post Posted: 14/January/2018 at 21:13
Now that’s where I hate lawyers - they get you to a point, and don’t really care what happens after their relationship with you ends.

They are correct that if I come changes by more than 15% you can get a change of assessment,   But that applies to ordinary child support, rather than “additional” support.

The problem is that regardless of whether the limited agreement was lodged or not - there is evidence that you were going to pay the fees. And that is how the children were enrolled in the school.

Your next “chance” would be when the children start high school if their need to change schools.   

With relation to medical expenses, if they are high, there is a reason whereby you can get CSA to collect.

My comment with primary carer was more in relation to say myself having the kids each week, and my ex only has weekend time. I can reduce my work - because I don’t want to use after school care etc (kids aren’t coping with school work),   It if ex does, he has no kid responsibility - so it doesn’t make sense.

In your case, either of you could argue you are reducing income to support kids and will be able to do so without penalty.

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  Quote jaazzz Quote  Post ReplyReply Direct Link To This Post Posted: 14/January/2018 at 23:21

Seems to me that your ex & or her lawyer has either failed to or deliberately not lodged the LBA with CSA... That means no LBA exists. I understand the notation provides evidence of intent, however the actual intent of both parties at the time of the order is not being fulfilled due to that neglect...

Best & easiest course of action would be for the ex to agree to write up new consent orders without the notation, & for you both to enter a LBA if that is your wish & actually lodge it...

Failing that, appeal the current impasse via the AAT, or file with the court to have the current order amended ...

Write to your ex first requesting the first option & if she doesn't agree, tell her you will consider a costs application due to her neglect to lodge the LBA as per the notation if you are forced to file with the court...

Any opinion given should not be accepted as legal advice.

Please post your legal questions in a forum rather than sending a PM. Thanks

emca01 View Drop Down
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  Quote emca01 Quote  Post ReplyReply Direct Link To This Post Posted: 15/January/2018 at 08:47
I'd write back to the ex's solicitor (politely) and explain that the LBA needs implementing and that the intent of the orders has not been followed. I'd go one further and say that you'll consider your financial options and ceasing payment is on the cards...

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