VIC Queries on Child Support and School Agreements with Ex?

[Merrigold]

My ex and I divorced a few years ago and have shared parental responsibility of our child. We also have Final Parenting Orders (consent orders) and a registered/certified Binding Child Support Agreement in place where it is clearly stated that my ex must pay or cause to pay all private school fees billed by the school our child is attending or such other like school as we may agree that the child attends.

We have a 8/6 nights per fortnight arrangement where the child spends 8 nights with me. I get a token child support amount from my ex as it has always been more important to me that my ex covers our child's school fees than to make direct contributions to me.

The other day I received an email from my ex claiming that my ex's financial circumstances have changed and that my ex will not be able to afford to pay for our child's tuition or any other private school as of next year. The email also included a link to another school and an invitation to share my thoughts. Neither the child nor I wish for the child to be taken out of the current school. We are happy with it.

My experience with my ex is that negotiations are a waste of time; it is my ex's way or no way at all. The costs associated with our divorce significantly set me back financially and I would not be able to pay the school fees myself.

My ex refuses to speak to me about our child and only communicates about few select matters via email (I feel he is keeping a record of everything I have to say for potential future legal action). I also know that my ex has a property investment (that was part of the financial settlement) that once sold would more than cover education costs for the next 4 years.

My questions are: Does my ex need my agreement to pull our child out of the current private school and/or enrol our child into a public school? How if at all should I respond to my ex's email? Do I need to negotiate and/or have a track record of trying to negotiate in case this matter ends up in court? Would my ex be in contraventions of the Final Parenting Orders & the BCSA if action is taken without a proper consultation with me? Does an email communication constitute a consultation?

I really wish to avoid going to court again. It had in the past a significant impact on our child. Is there anyone out there who might have dealt with a similar problem?

Any help would be welcome.

 

[AllForHer]

School enrolment is a little bit of a shady area when it comes to parenting orders because in most cases, the school allows one parent to complete enrolment without even the contact information of the other. The only real way to stop it is to get a parenting order that places an injunction on the parents from changing the child's education provider without the written consent of the other parent (or the less likely order of sole parental responsibility).

The difficulty with this particular situation is that there's a binding child support agreement in place for the coverage of private school fees, and if dad's financial circumstances have changed substantially, then that agreement may simply be untenable. The Court would consider his financial circumstances and capacity to pay, but it's unlikely a Court would force the father to sell an investment property - which is considered a source of income - to fund one child's private education. Realistically, there's probably three outcomes here that the Court might consider - either ordering dad to pay according to the agreement, or having the agreement set aside, or ordering the child be enroled in a different school.

Regarding the question about consultation by e-mail, e-mail is an acceptable method of communication between parents, but simply telling you that he's going to enrol the child in another school and then going ahead and doing so without your consent is not considered consultation as prescribed by shared parental responsibility.

So, what would I do?

I would e-mail the father and advise that I don't consent to changing the child's education provider, but I am willing to discuss the matter further, namely as to how the tuition fees can be covered for the current enrolment.

If you can afford to pay 25% of school fees and he the other 75%, then that would be better than going back to Court, in my view.

 

[sammy01]

I'd write back and say that the BFA and the consent orders stipulate that he pays the fees and there is no reason for the child to change schools. As such, you expect the child to stay at the school and for the ex to honour the terms of the agreement and if he has a problem with it then he can seek redress through the courts...

The problem you've got is that if he doesn't pay then the school will bill you. You might wanna have a chat to them about how the school deal with this stuff. You don't want a debt recovery agency chasing you. The other problem is to get the orders enforced through the court will cost lots of money.

So a binding financial agreement requires dad to pay more than the assessed child support amount. Have you done the math on that?

 

[Merrigold]

Thank you for the help. I will speak with the school and write a polite reply to my ex.

My experience with my ex tells me that the ultimate plan is to stop all contributions by whatever means possible. I also know that my ex and his partner are currently undergoing IVF treatments to try for a second family.

As far as the assessed child support amount goes I believe it is dependent on one's income and my ex has a talent for 'hiding' income dollars (business owner). This was precisely the reason why I opted to go for BCSA as I wanted to ensure that at least our child will be taken care of.

 

[Merrigold]

Thank you for your help. I will politely reply to my ex expressing that I do not consent to changing schools and wait for a response. I am hoping for the best but the realist in me suspects that this will end up in court.

Frankly, I am disappointed that after spending hundreds of thousands of $ on our settlement using one very expensive Melbourne family law firm (my ex had lots of free legal advice). I am still facing attempts to unsettle things. I fear for our child's well being.

 

[SamanthaJay]

Merrigold, is it possible he's testing the waters? From what I'm reading here, he would need to apply to the court to have the current binding agreement set aside due to exceptional circumstances or hardship on his part.

2.7.1 What Is a Child Support Agreement? | Child Support Guide

"A binding child support agreement cannot be varied (section 80CA). To change a binding child support agreement, the agreement must be terminated and replaced with a new binding child support agreement. For further information on how a binding child support agreement can be changed or terminated, see 2.7.5." and so on.