QLD Custody of Children - Pay Child Support and Spousal Maintenance?

[Giraffe124]

I split with my partner of 7 years in December 2015. We have a 5-year-old son. We lived in Canada for a few years and worked for his parents. He didn't work much yet still got paid more than I did who worked my butt off. I saved up $8000 to return to Australia with whilst he spent all his wage and got into a $10k debt with his mother.

We returned to Australia in 2014 and I have worked two job to support him except for a few weeks when he had a job but they found him unsuitable for the full-time position.

I was nervous to rely on him for an income, so told him I don't mind if I work more just make sure he can take our son to kindy, etc., and he find a casual job to help out. He never did get another job so I worked hard to support the family, quietly waiting for help.

Since we split up, I let him stay in the house for a short period of time so he could find accommodation and a job. It's March and he still has not left even though I've asked him few times.

He messaged me one day saying I had failed as a mother because I had to arrange someone to take my son to school because I start work at 6 am. He said he would take my son away from me 100%. We fought and I cried for days. Now we have agreed on 50/50 custody of children and am waiting to get consent orders into place.

He rang Centrelink trying to get the family tax benefit to be 50:50 but they wouldn't do it. I told him once the orders were legal, he could get FTB. Someone told me I would have to pay him child support because he is unemployed, and I'm worried I will have to pay spousal maintenance.

I have paid for everything here since we returned. I paid $3.5k for plane tickets, $4.5k for the car. I told him he could have the car if I can have the rest of the cheap crappy furniture in the house but now he is demanding I pay him $1000 from some money he got from his mum to help pay the rental bond and has taken the engagement ring that I technically paid half of.

I'm struggling to pay $400/week rent. And he told me that he would never pay me child support ever because I did this to him. We both took his name off the lease starting 6 March, he agreed to that and I'm scared he won't leave on that date. If I force him out I'm worried he will try to take my son from me.

He has rich parents that would get him a solicitor and I have nothing.

Going to see legal aid on Monday but I'm scared about the child support, spousal maintenance and him not leaving.

Any help?

 

[AllForHer]

So, there're a few separate matters to consider here, but I'll cover what appear to be the most significant concerns for you, which is child support, spousal maintenance and refusal to vacate the premises.

Once one of you engages Child Support (or the CSA) in relation to a child, it imposes a legal obligation on one of you to pay child support, regardless of whether the payer wants to or not. The CSA has a legally defined formula for how the child support amount is determined, the two main factors of which are how much time the child spends with each parent, and how much taxable income each parent earns.

In your case, if the child lives with each of you on a week-about basis, but you earn significantly more than the other parent does, it's probably correct that you will have to pay him child support. With that said, however, if you're on a modest income of, say, $50,000 per year, it might only be maybe $15 or $20 a week. The Department of Human Services has a calculator to estimate child support amounts here: Online estimators - Australian Government Department of Human Services

One thing to note is that the father can claim FTB since the care percentage is approximately 50/50, and if you have an agreement for 50/50, then it can be used as proof when claiming the FTB payment. It doesn't matter that they're not yet consent orders.

However, it is my understanding that FTB may not be granted if a child support assessment has not been undertaken. Thus, whether he pays child support or you pay child support, it's likely he won't get FTB without some kind of acknowledgement about child support payments.

Spousal maintenance, I really would not even waste your energy stressing about the likelihood of having to pay spousal maintenance. Spousal maintenance is not an entitlement that your ex can simply apply for through Centrelink or whatever. It will only be paid by agreement of both parties, or by order of the court.

For the court to order that spousal maintenance be paid, the applicant must essentially prove that they have been placed into a position of financial hardship as a result of the de facto relationship. The circumstances that meet this criteria are extremely uncommon. An example is where one party has been a high-income earner for a long period of time and financially supported the other party for the duration of the marriage while that party stayed at home and raised kids or kept house for an equally long period.

The general idea is that one party has been disadvantaged financially by the marriage because they have sacrificed employment opportunities and workplace experience as a result of the marriage. Another way of looking at it as that the separation or divorce has seen one party's 'source of income' (namely, the other party) removed unexpectedly, thus placing them in a position of hardship. Spousal maintenance serves to remedy those situations, and for the record, it's usually only awarded temporarily until a property settlement is determined.

If both parties are working, or otherwise have the capacity to work, spousal maintenance is unlikely to be awarded. If the party being claimed against is earning only a modest income, and the court determines that an award of spousal maintenance would impose an untenable financial burden on them, then the court is unlikely to award it.

In your circumstances, I deduce that your income is moderate, and I deduce that your ex can work, but chooses not to. I also deduce that you have limited assets, so a property settlement is unlikely to be a major issue. As such, I highly, highly doubt that he would win an award for spousal maintenance.

Finally, him moving out is an entirely different jurisdiction altogether, but summarily, if he's not on the lease, and he doesn't have your consent to be there, then he's trespassing. You should speak to the real estate or landlord about his removal, or alternatively, you might like to speak to the police.

At a personal level, dealing with the bullsh*t takes practice, and I even suggest volunteering for a post-separation parenting course with Relationships Australia to help you manage things. The most significant advice I ever received from a lawyer didn't act out of guilt or under duress. Whatever fears you have in this space - like fearing he'll take the child if you force him to move - can probably be remedied with proceedings, and while I really (really!) hate implying that a party should 'take them to court!', my experience has taught me that the risk of court proceedings can be highly persuasive for a challenging party to settle.

If the cost, time and emotional impost aren't persuasive enough, then the court may well be - honestly, it astounds me how many individuals enter the family law system full of confidence that their case is righteous and just, only to be berated ruthlessly by a judge at the first interim hearing because the court really doesn't want to deal with their domestic disputes.

Anyway, I hope this in some way helps.

 

[Giraffe124]

Thank you so much, your reply really is amazing. I'm trying to make sure he moves out this Sunday amicably and not involve the police or anything. I feel he will keep trying to stay as he doesn't want to stay with family nearby.

I feel a lot better about the child support and spousal maintenance. I'm just a cleaner but I worked my ass to support him so doubt he'd get much anyway.

Once I file the parenting consent orders, how long does it take to become legal?

I am so grateful for the time and information you put into your reply, certainly put part of my mind to rest.

 

[sammy01]

Once you have both signed and submitted consent orders to the court they can be returned within a fortnight.