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Recovering "Private Agreement" payments

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Recovering Private agreement non-payments

Hi everyone. My partners kids (12 and 13) have decided to live with their dad. He took them for the day and never returned them, ignoring the existing Court Order. The kids want to stay with him, and we have conceded that. The kids are spending every 2nd weekend here and there is no dramas at all between us and the kids. In their words they just want "Change". They just miss their Dad after spending 9 years with their Mum.

However, he owes over $7,000 in unpaid maintenance, and refuses to have the Court Order amended. We just want a Court Order reflecting the current living arrangements, and feel that should be his responsibility and he had instigated this change in a dishonest way. The payment of maintenance was by "Private Agreement".

Now, he is making moves to seek maintenance from us !!! I have no worries dragging this guy through court to recover the $7,000, and only paying any money to him when we are forced to do so. Can anyone let me know if we have any chance getting what he owes us, and what will the outcome be if we just refuse to pay him? We will pay without a problem if we are forced to do so by the court, but we aren't prepared to just roll over due to his dishonesty and arrogantattitude. Both sides are making enough money to ensure that the kids won't go without anything they need.

Last edit: by MikeT

Although wrong from what you have said if the other parent applies to the CSA for Child Support, then they would ignore any private agreement, unless it meets the criteria for an agreement. I assume that by maintenance you mean child support.  

There's no need for court orders if you don't want them. There are court orders for my son that say I'm the "spends time with parent". However, I'm actually the "lives with parent" and have been for nearly 4 years without any hassles. The schools accepted them with a note giving an overview of how they are basically irrelevant. Alternately you (you being any combination of the responsible parents) could sit down a draw some up and file them, perhaps after getting a solicitor to check them. They cost about $200 to file as consent orders with no need to have any hearings, the registrar will check and file them.

Here's a link to the section of the CSA Guide that deals with agreements, you may wish to have a read of this The CSA Guide - 2.7 Agreements

There is a also a child support calculator available from the home page. However, it hasn't been updated for 2012. So here's a link to a copy that has been updated to 2012: Alternateive CS Calculator

Lastly please note how your post was edited to add paragraphs. Please, in future, use paragraphs.

I don't know if you'd have much luck trying to go to court over payments. Time/timing might be against you. Also as the children's interests will be considered it could be seen as you would be taking money from them. However, I'm more a CS persons than Family Law person so the words of others with more experience and knowledge should be heeded.
Generally speaking, if you have not involved the Child Support Agency to collect the arrears for you, then you can pretty much kiss that money goodbye, as the agency, once you go collect, is only able to collect 3 months of arrears, except in very exceptional circumstances.  Their attitude is, "you didn't ask, you didn't need it".

If they have been collecting for you, then you can ask for the arrears to be offset against the ongoing liability.
Your correct smurfergirl, but I do know of many cases, where CSA decided not to let the payer offset against the ongoing lability. They try and talk you into gifting the money and if you don't wish to do so, they tell you that they can't collect and that you are still required to pay x amount, since it otherwise will cause financial hardship for the caring parent. If your CS gets collected through your employer, you can't even withhold CS. Off course its not correct, but happens to often.
Enforcement is easy if you are using a C$A assessment however I'm not sure how you would enforce a private arrangement. It's possible you could use the same process but you would need the agreement in writing and signed off by parties etc…. and proof of payments made. An enforcement order can be responded to so your chances of success are not guaranteed. I say this as I have successfully defended one. What you haven't mentioned is how much child support was voluntarily paid in 9 years and how your partner fared in her property settlement.

Last edit: by Fairgo

Thanks for that. Fairgo, he paid approx $130k over the 9 years. The monthly amount was based on a CSA assessment, but he obviously paid less than the requested amount on a fairly regular basis.

My partner can't remember anything being signed, and is confident that they were never asked to sign any documents when the arrangement was made. The CSA sent documents to the father specifying the amount to be paid and initially at least, he paid, before slackening off. My partner never persued it hard as she didn't want to cause a conflict.

At the time of the settlement / divorce, total assets were split pretty much 50/50.

As of today, my partners ex is getting pretty pushy when it comes to my partner paying him. He txt today offering bank account details so she could start paying CS, although nothing has even been initiated through the CSA.

Buster, has he actually applied through CSA? As in, have you received an assessment notice from them stating what your partner should pay? If not, then wait until he does.

You could possibly try the three different anonymous phone calls to CSA to get an idea of what their response is as well.
If he paid 14k a year for 9 years I would not be complaining too much. I wish I could afford to spend that much on my kids that live with me. How much do you think your partner will be paying for the next 5 or 6 years?
He makes in excess of $100k per year, which is much more than my partner. We expect to pay about $300 per month, due to his high income. As stated earlier, we don't mind paying what is due and certainly aren't crying poor.

Its more of a principle thing. He has just neglected his obligations for years, but now the boot is on the other foot, he suddenly wants everything done properly. In reality, we just want a bit of fairness. The cash amount is not a big deal to us.
If it's a private agreement and If he owes you 7k, will he consent to another private agreement, along the lines of your partner not paying the $300 per month for 23 months to wipe out his debt? Or maybe your partner paying $150 per month but the other $150 comes off his debt?
So it would appear that your partner is on a taxable income of about $66,500. That is if at $300 per month for 1 13 and 1 12 year old and regular care and if the other parent is on $100k. If the other parent is on $120K then your partner would be on about $74,500 using the same parameters.

Reversing the level of care for the former would see the other parent's annual liability at slightly over $11,500 for the $100k scenario and at under $13,500 for the $120k scenario. So if you had the equivalent of $14k per year then you would appear to have done very well over those 9 years as you'd be getting more than at today's rate and one of the children is 13+ so the CS for previous years would have been lower (under $10,500 and under $12,500 respectively). If you then consider the $7k owing the annual rate of CS that was being paid must have been at least $15,000.

The other parent could, if they knew how to play the system, have you paying from close to $750 to over $1000 per month and could recoup the $7k in well under 2 years and $21k-$36k in the 4 remaining years (that's without factoring in the increase when the 12 year old turns 13, when the CS will increase). This from what you say could be quite likely as you have mentioned the other parent's arrogance and dishonesty. It could well be less expensive for you see that the other parent now has the upper hand and not make waves. There is little doubt that the CSA, with their collection centric mentality, would side with the other parent as the top line they report to the DHS minister and other MPs, is how much they have collected or transferred. To successfully contest such unfairness by the CSA would very likely require taking the matter to SSAT to then likely be given an even less fair decision which you then only have one last attempt at contesting in court and that can only be on a matter of law, not a matter of fact.

buster - To say that he has neglected his obligations is a bit of an over statement when he was only behind 5% over 9 years. He now has the kids for the most expensive time of their childhood and the mother is only going to contribute less than the interest 130K could return. Mike is correct - he could make life frustrating for you now he is the payee. Best to move on and be happy he contributed 130k over 9 years as I am sure it saved you some $$$.
Thanks everyone for the advice. It has been very valuable and certainly helped clear our collective heads.

Thank you. :)
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