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My ex is coming after me through a COA for school fees.  She has applied to have me pay for school fees for 2 children next year, and one child from then on. 

There are 3 issues, firstly, the older one just completed year 11 and is dropping out of school to attend a local private college.  I did not agree to pay for these fees (the course is offered at TAFE for $1200 a year, the private college is ten times that).   My son is doing the course for personal development, not as vocational training.  I agreed with him attending a private school for as long as I could afford it, as the local high school has quite a bad reputation.  I never agreed to private tertiary education for a course described in the brochure as "a year of fun".   Will my ex have much luck forcing me to pay these college fees (there is no HECS or FEE-help available for this course..), as it is a very different scenario from the private school which was my expectation?  Also, she lied on the form by misrepresenting the type of education? 

Secondly… she didn't include any Asset information, but I know she has savings and has just bought a new $27k car.  I'm wondering if she has inherited some money, as some other recent purchases indicate an influx of cash into her household. (New TV, new leather lounge etc.)  She wrote "N/A" across all of the asset questions in the form.

Thirdly, I'm in the process of declaring bankruptcy.   Can she still force me to pay for private school fees despite this?  In "real life", if you can't afford to pay your bills, obviously a private school education is not something you can afford for your kids.  It was something my financial counselor advised me to drop, when I was trying to avoid the bankruptcy.  (Unfortunately it is happening anyway.)  I would have thought this would have made my change in financial circumstances rather obvious and irrefutable.

Any ideas on what I could expect would be greatly appreciated. 

Peter
If the ex did not provide any asset information then C$A cannot properly assess the application so perhaps you should just send the paperwork back stating this. It would also help if you have the agreement for schooling in writing. Even if you are declaring bankrupt and you still have an earning capacity C$A will use this to assess what you can afford to pay.
Thanks Fairgo.

Unfortunately I have already sent off my response, but I did make mention of the new cars etc. and lack of information provided by the ex re. assets.  

I have something in writing regarding secondary education indicating that the intent was to keep the kids out of the local public school, but there is nothing in writing about tertiary education, and I very much doubt my ex (who in vindictive and difficult at the best of times) would agree to me not paying half of this college course given that she is lying to the CSA to try to force me to pay for it.

I'm glad to hear though that the CSA will not be able to properly assess the application.  Hopefully they will reject her claim on that basis.

Thanks again,

Pete
Pete - If the schooling is compulsory due to child's age then you might not succeed. Arguing that the education is tertiary might not make any difference. If C$A have sent you the application then they have accepted it. It's in their best interest to do so if they think they can increase the liability and private school fees is an easy one for them to do. Looks like the decision will come down to your capacity to pay.
fairgo - lucky for me, she has backed down on the tertiary education by providing an "updated" quote for just my daughter.

Given that her budget as per her declared expenses would cover these fees, I'm hoping that this makes a difference.  She was effectively paying for 1 child before, without my contribution she is still paying for 1 child.. so no additional burden on her.

Given that she has still not declared her asset/debt information, I have requested that the mediation with the SCO be delayed until she has filed that information with the CSA.  "The Guide" says that they take that information into consideration, so I thought it was worth a try.

She's had a few elderly relatives die in the last couple of years, and since then has been traveling overseas, new leather lounge, $30k worth of new cars etc.  For all I know she could have a million in a bank account that she hasn't declared.

Pete
Pete - As you have agreed to your daughter going to a private school the you may have to contribute to the fees however the final decision will depend on the difference between your and the ex's financial situations and earning capacities. If you have re-partnered and have other children to support this would help your case.
thanks Fairgo, yes I have repartnered.. and 2 small children to support now as well.

I heard today that my daughter is buying a horse.  My ex can't be too strapped for cash!!  Whereas I'm having trouble putting food on the table.

Pete
Just letting you know that once the COA people have made a decision they will start collecting the extra liability immediately.

To appeal you will have to go through C$A objection process which can take two months and then if unsuccessful go to the SSAT for a decision which can take a few more months. After a SSAT appeal you can appeal to a court but only on a point of law - that means if the SSAT have not correctly applied the law and not about how they have considered facts of the case - although if you believe the SSAT have not handled the case very well then you can appeal the decision on procedural fairness.

If after the appeals you end up with a decision more in your favour you can then claim all your costs from C$A through the Defective Administration scheme (CDDA Scheme).

So make sure you keep all records and only deal with C$A in writing so you can keep up with everything - if you use the phone you will more likely lose track of things during the process.

If you have it in writing from your financial counsellor that you should drop private schooling to avoid bankruptcy, this may help your case.
Fairgo - I have my phone mediation/hearing on Monday.  Would there be any value in recording that?  Am I legally allowed to?  Everything up until now has been in writing.

Is it too late to submit something from the counsellor? (I have noted in my response that dropping school fees was advised, but don't have it as written evidence.)

thanks

Pete
The phone hearing will be another opportunity for them to gather evidence to make a decision. Be very careful what you say.

You need to show that you are becoming a bankrupt and that your intention to continue supporting private schooling was conditional on it's affordability. As your other children are not in private schooling it's only fair that all children are treated equally.

As the ex has not provided her financial information I can't see how they can proceed with making a proper decision. You might like to ask them about this and perhaps refer to the Legislation below - study this very carefully as all 10 reasons for change off assessment have been extracted from this legislation and C$A do not always follow this correctly.

Recording the phone conversation might help you in a SSAT appeal but since that appeal is a fresh look at the matter, I don't think the recording will be much help to you.

117  Matters as to which court must be satisfied before making order
Court may make departure order
   (1)   Where:
   (a)   application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
   (b)   the court is satisfied:
   (i)   that one or more of the grounds for departure mentioned in subsection(2) exists or exist; and
   (ii)   that it would be:
   (A)   just and equitable as regards the child, the carer entitled to child support and the liable parent; and
   (B)   otherwise proper;
      to make a particular order under this Division;
the court may make the order.
Grounds for departure order
   (2)   For the purposes of subparagraph(1)(b)(i), the grounds for departure are as follows:
   (a)   that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
   (i)   the duty of the parent to maintain any other child or another person; or
   (ii)   special needs of any other child or another person that the parent has a duty to maintain; or
   (iii)   commitments of the parent necessary to enable the parent to support:
   (A)   himself or herself; or
   (B)   any other child or another person that the parent has a duty to maintain; or
   (iv)   high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain;
   (aa)   that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection(10));
   (b)   that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
   (i)   because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or
   (ia)   because of special needs of the child; or
   (ib)   because of high child care costs in relation to the child; or
   (ii)   because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
   ©   that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
   (i)   because of the income, earning capacity, property and financial resources of the child; or
   (ia)   because of the income, property and financial resources of either parent; or
   (ib)   because of the earning capacity of either parent; or
   (ii)   because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.
High costs involved in enabling parent to care for a child
   (2B)   A parents costs involved in enabling the parent to care for a child can only be high for the purposes of subparagraph(2)(a)(iv) or (2)(b)(i) if the costs that have been or will be incurred, during a child support period, total more than 5% of the amount worked out by:
   (a)   dividing the parents adjusted taxable income for the period by 365; and
   (b)   multiplying the quotient by the number of days in the period.
   (2C)   If a parent has at least regular care of a child, then the only costs that can be taken into account for the purposes of subsection(2B) are costs related to travel to enable the parent to spend time with, or communicate with, the child.
High child care costs
   (3A)   The ground for departure mentioned in subparagraph(2)(b)(ib) is taken not to exist unless:
   (a)   the costs are incurred by a parent or a nonparent carer; and
   (b)   the child is younger than 12 at the start of the child support period.
   (3B)   Child care costs for a parent can only be high for the purposes of subparagraph(2)(b)(ib) if, during a child support period, they total more than 5% of the amount worked out by:
   (a)   dividing the parents adjusted taxable income for the period by 365; and
   (b)   multiplying the quotient by the number of days in the period.
   (3C)   Child care costs for a nonparent carer can only be high for the purposes of subparagraph(2)(b)(ib) if, during a child support period, they total at least 25% of the costs of the child for that period.
Matters to consider for purposes of subparagraph(1)(b)(ii)
   (4)   In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
   (a)   the nature of the duty of a parent to maintain a child (as stated in section3); and
   (b)   the proper needs of the child; and
   ©   the income, earning capacity, property and financial resources of the child; and
   (d)   the income, property and financial resources of each parent who is a party to the proceeding; and
   (da)   the earning capacity of each parent who is a party to the proceeding; and
   (e)   the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
   (i)   himself or herself; or
   (ii)   any other child or another person that the person has a duty to maintain; and
   (f)   the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
   (g)   any hardship that would be caused:
   (i)   to:
   (A)   the child; or
   (B)   the carer entitled to child support;
      by the making of, or the refusal to make, the order; and
   (ii)   to:
   (A)   the liable parent; or
   (B)   any other child or another person that the liable parent has a duty to support;
      by the making of, or the refusal to make, the order; and
   (iii)   to any resident child of the parent (see subsection(10)) by the making of, or the refusal to make, the order.
   (5)   In determining whether it would be otherwise proper to make a particular order under this Division, the court must have regard to:
   (a)   the nature of the duty of a parent to maintain a child (as stated in section3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
   (b)   the effect that the making of the order would have on:
   (i)   any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
   (ii)   the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.
Proper needs of the child
   (6)   In having regard to the proper needs of the child, the court must have regard to:
   (a)   the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained; and
   (b)   any special needs of the child.
Income, earning capacity, property and financial resources
   (7)   In having regard to the income, earning capacity, property and financial resources of the child, the court must:
   (a)   have regard to the capacity of the child to earn or derive income, including any assets of, under the control of, or held for the benefit of, the child that do not produce, but are capable of producing, income; and
   (b)   disregard:
   (i)   the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
   (ii)   any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.
   (7A)   In having regard to the income, property and financial resources of a parent of the child, the court must:
   (a)   have regard to the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of, the parent that do not produce, but are capable of producing, income; and
   (b)   disregard:
   (i)   the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
   (ii)   any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.
   (7B)   In having regard to the earning capacity of a parent of the child, the court may determine that the parents earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:
   (a)   one or more of the following applies:
   (i)   the parent does not work despite ample opportunity to do so;
   (ii)   the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes fulltime work for the occupation or industry in which the parent is employed or otherwise engaged;
   (iii)   the parent has changed his or her occupation, industry or working pattern; and
   (b)   the parents decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:
   (i)   the parents caring responsibilities; or
   (ii)   the parents state of health; and
   ©   the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.
Direct and indirect costs in providing care
   (8)   In having regard to the direct and indirect costs incurred by the carer entitled to child support in providing care for the child, the court must have regard to the income and earning capacity foregone by the carer entitled to child support in providing that care.
Subsections not to limit consideration of other matters
   (9)   Subsections(4) to (8) (inclusive) do not limit other matters to which the court may have regard.
Definition of resident child
   (10)   For the purposes of this section, a child is a resident child of a person only if:
   (a)   the child normally lives with the person, but is not a child of the person; and
   (b)   the person is, or was, for 2 continuous years, a member of a couple; and
   ©   the other member of the couple is, or was, a parent of the child; and
   (d)   the child is aged under 18; and
   (e)   the child is not a member of a couple; and
   (f)   one or more of the following applies in respect of each parent of the child:
   (i)   the parent has died;
   (ii)   the parent is unable to support the child due to the illhealth of the parent;
   (iii)   the parent is unable to support the child due to the caring responsibilities of the parent; and
   (g)   the court is satisfied that the resident child requires financial assistance.
Just had the phone call with the CSA.  They were VERY interested in my wife's details.  Asked how much she earned, when she was headed back to work after giving birth (six weeks ago).  I know they are not supposed to take partners details into account, so why were they so interested??  I'm worried.

Pete
They want to know this as they consider your wife to be a resource for yourself. I hope you did not give them answers as the legislation above does not really allow them to use your wife's income.
Darn.  I told them the truth:  she is at home looking after our 6 week old baby, and will not be heading back to work for a year or two.  Hopefully that will be enough to put them off the scent.

I found out that my ex had her meeting with them last week.  My ex has always felt entitled to my wife's resources "for the sake of the children."  She even told me that we were not to have a honeymoon, but should give the money we would have spent on it to her!!  (yes, she is delusional.)
Don't be surprised if C$A say she should be back to work soon!
If they try that fairgo, they will end up with a fight on their hands!

Also, they told me that if I agreed to pay for 50% of the school fees, I am not allowed to then claim my payments as prescribed payments.  

This is what I said to the CSA "Due to the applicant filing for 100% of cost in Sept. 2010 and the resultant increase in child support, I need to claim prescribed payments, which I am now entitled to do.  The applicant's reason for the application appears to be an objection to me claiming prescribed payments.  "The Guide", however, notes that she does not have to agree to these being credited towards my child support liability for me to be able to do so.  i.e. "A payer … is generally able to have those payments credited towards their liability to pay child support for that child, even if the payee did not intend that the amount be for child support."

They said that this was "making her pay for it anyway" and that I wasn't allowed to do that.

I think their logic is faulty.. am I wrong?
C$A are meant to be following the law.

As you have stated that you will contribute to private school fees as long as you can afford them, C$A need to assess your capacity to pay the fees in relation to their decision being just and equitable as regards the child, the carer entitled to child support and the liable parent.
s177(1)(b)(ii)(A)

According to the law C$A cannot make a decision if they do not have your ex's financial information to consider.

Once they have made their decision they will start collection and your means to appeal the decision are somewhat limited. You will have to formally object to the decision and request a review. If the review does not go in your favour then you can ask the SSAT to review the decision.
Time to celebrate - the COA was declined for both reason 3 and reason 8.

My wife put together a three page letter refuting my ex's claims.  Many of the points in this letter were referred to in the background for the decision, I believe that referencing the law and referencing The Guide back to them made a difference.. it was obvious that we had done our homework and knew our rights.  I wonder how many folks come off worse because they are not detailed or are too emotional in their responses?  My wife's letter sounded decidedly "lawyer-ish" and was very detailed and factual. 

I get the feeling that I was one of the lucky ones.

Thanks so much for all of your feedback Fairgo. 

PeteOT
Glad to be able to help although I'm not sure if I really gave that much advice on your matter.
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