Binding Financial Agreement

[appleton]

Hi atticus, there is an informal agreement (email) for a private collect arrangement.

Both have poor financial positions; he is a low income earner who was completely cleaned out by her, and now in the current climate is not working. She is bad with money and is likely to have significant debts, she does not work (although capable - prior to current situation of course) Divorce is pending, neither have assets.

Rereading the lawyers letter, it does indicate that they are attempting to negotiate the DVO saying 'we will accept if you sign this BFA'. There is a very basic consent order in place (weren't actually aware of that initially) all that it states is that there is shared parental responsibility, which is the basis of the amount that they are trying to claim in the BFA. Letter also claims that he does not contribute to the childs developmental needs - which is very difficult when you are blocked denied contact. We have also previously advised in writing that costs ie. uniforms will be split 50/50 on evidence of receipts - she has previously claimed for items not purchased and also sold gifts. So there is a lack of trust from us there...

 

[appleton]

Suggested reply?

Dear xxx,

Your request for a BFA is declined.

Shared Parenting responsibilities; it is very difficult to achieve this when your client has blocked all communication and contact with xxx (child). She has alienated him from myself and other family members, she has also advised in writing that I will 'never see him again'. Your client has refused mediation (in writing) and rejected an offer for a revised parenting plan which were to be made into consent orders.
(they are claiming he refuses all support and is absent from the childs life - given her previous actions, we know that once money is received she will continue to block and deny access)

For matters relating to the DVO, please refer to the information provided in the DV1 dated xxx. This is a matter for your client should she wish to accept without admission as it was at her request that this was to proceed to a trial.



Questions;
- is it worth asking for access/communication with the child
- she has made many posts on social media, do we advise them to remove them?

 

[Atticus]

Hi atticus, there is an informal agreement (email) for a private collect arrangement.

Not legally binding in any way... good

Rereading the lawyers letter, it does indicate that they are attempting to negotiate the DVO saying 'we will accept if you sign this BFA'.

So I asked before but didn't get an answer... Is he the applicant/protected person in the DVO or she is?... It's not entirely clear ... In either case, if the respondent agrees to accept without admission, the court will accept that .... The applicant/protected person can't say no, it's the magistrates decision

There is a very basic consent order in place (weren't actually aware of that initially) all that it states is that there is shared parental responsibility, which is the basis of the amount that they are trying to claim in the BFA

So when you say consent order ..... Are you sure it's not just a parenting agreement? .... Shared parental responsibilty is the default position anyway uless an actual court order states differently ... Need more clarity on exactly what it is

In any event ..... He should not agree to any BFA ... Personally I would be letting her know that all payemnts are ceasing & that she should call CSA & initiate a CS assessment ... Whatever that figure is, that is all he needs to pay

 

[Atticus]

There is a very basic consent order in place (weren't actually aware of that initially) all that it states is that there is shared parental responsibility, which is the basis of the amount that they are trying to claim in the BFA

One final question ... If that is a parenting plan that includes an agreed amount to be paid as child support? ..... Than was it registered with CSA as an agreement? ... If it was, then that probably changes things a lot

 

[Tim W]

And one post-final suggestion... If, as you say, she is "bad with money",
then consider a thing call Third Party Payment.
This is a mechanism where you can pay bills etc yourself, for the benefit of the kids,
and have it count as Child Support Payments, but the money never goes through the other parent's hands.

 

[appleton]

Thank you, this is very helpful.
Is the layout of the response to the lawyer ok?

To clarify;
- There are no formal financial agreements in place.
- He has made the application for a DVO against her.
- There is a consent order that was raised as a requirement for different matter (immigration) and did not address anything "parenting related". Hence the attempts at mediation to remedy. The consent order is very basic and states only that they are 'on good terms and have shared parenting' . There is supporting documentation for the other matter that does include an overview of what he was paying her previously, but the informal agreement after this date was for a different amount. Previously he was ignorant to the CSA assessment process (yes this is on him) and blindly believed that he had to pay whatever she demanded.
- thank you Tim, we will look at the third party agreements, great idea

 

[Atticus]

He has made the application for a DVO against her.

Okay .... That's what I thought but just wanted to make sure ..... In that case obviously ignore the whole " she will accept without admissions if you sign a BFA" thing .... Actually a bizarre proposal since the BFA benefits her .... Not sure what she thinks he would be getting in exchange for signing. Avoiding a DVO hearing? Dunno . Bizarre

There is a consent order that was raised as a requirement for different matter (immigration) and did not address anything "parenting related". Hence the attempts at mediation to remedy. The consent order is very basic and states only that they are 'on good terms and have shared parenting'

Still not sure exactly what this consent 'order' relates to. Only a court can issue an order or accept a consent order.... Anyway, as long as it doesn't include any child support agreement that's been accepted by the CSA registrar then that's not an issue

Previously he was ignorant to the CSA assessment process (yes this is on him) and blindly believed that he had to pay whatever she demanded.

So then I repeat what myself & sammy has suggested, ie, just stop paying CS & invite her to call CSA & initiate a normal assessment process.

The Non Agency Payment to third parties that Tim mentioned is worth exploring >>> see link below, but there are a number of caveats (especially when they are intended to be in lieu of CS) regarding who you can pay, how & under only certain conditions ...

5.3.1 Non-agency payments | Child Support Guide

 

[sammy01]

I would not waste your time on third party payments. Why? well she needs to agree for you to give her less $ and instead pay that $ to someone else like child care... She won't agree.

 

[appleton]

Thanks again everyone for your advice and comments.

We have been contacted by the ex who has advised that her lawyer will be sending through a letter of undertaking for the DVO. The letter has not been received yet so I may post again with clarifications/questions, as my understanding of an undertaking is that it is merely a promise of a certain behaviour? Previous correspondence from her lawyer was that they were going to take an AWA approach however this was tied to him agreeing to a BFA.

The ex is still refusing all forms of communication with the child. She has made it very clear that payment of additional money = access to child.

Unfortunately, the existing consent orders in place are very limited in nature. It is also difficult living interstate and the child being only 3 years old. (I understand that relocating would provide useful, but also has its challenges).

Listening to earlier advice (STOP PAYING - use the $$$ to get court orders so you can see the kid) we spoke with a lawyer who advised that it is almost impossible to get the courts to issue orders, when there are already existing ones in place (?), but advised that the DVO may be grounds for redress. Has anyone experienced this to confirm this advice?

The existing orders are very basic and state;

• Shared parental responsibility for their child
• Required to make all decisions about long term issues together
• Lives with Mother and spend time with Father as agreed between the parties in writing

The ex has advised that she is changing her phone number and will only allow communication with her via email. Also advising that the child is too young to understand video chats and she wont facilitate them

Both parties are open to continuing mediation; however, past attempts have stalled as she has refused to progress with the sessions and won’t allow any discussion regarding father/child time until a higher weekly payment amount is put into writing (BFA). This amount well exceeds financial means and is well in excess of the CSA assessments (esp in this current climate).

I guess really, we are seeking some thoughts/advice from others who may have better insights, or advice on if we should take any next steps. It is really disappointing not having communication and scheduled visits with the child, or any form of parental relationship, but are also realistic that the child is only 3 and we live interstate.

 

[sammy01]

I'm gonna live in fairy land for a bit. In Fairy Land Covid doesn't exist.

stop paying... Please tell me you have already done this.... Even in NON Fairy land this advice applies.

Options - offer new consent orders with time provided and a MAYBE a limited financial agreement. Don't pay 5 times CSA. Offer a modest amount more.

Make written requests to see the child. Keep them as emails.
Make an contravention applicaiton based on the fact that she isn't following the orders. "spend time with father as agreed between the parties in writing". She's refusing to agree. That will get him in the front door of the court. From there he can seek new orders.

I'd get started. Covid is gonna be a distant memory soon enough (well as far as crossing state borders goes)