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WHO PAYS PRIVATE SCHOOL FEES AFTER SEPARATION?

Fri, 8 Feb 2019

WHO PAYS PRIVATE SCHOOL FEES AFTER SEPARATION?

One of the biggest areas of contention we see in Gold Coast Family Law matters after parties have separated, is who is going to pay for the children’s private school fees.

The Department of Human Services (DHS) typically uses a specific formula to assess the amount of child support required to support a child on a day to day basis, taking into account the income of the parents, the care levels of each parent and the estimated costs of children of the child's age (periodic child support). Significant (and out of the ordinary) costs for the child, including, but not limited to, things such as private school fees and medical expenses (non-periodic child support), are generally not assessed by DHS.

Therefore, the collection and payment of those types of expenses will likely need to be arranged between the parties themselves, and it is an area where disagreements often arise as parties struggle to process the separation itself as well as trying to navigate life after separation.

Further, private school fees may become unaffordable for one or both parties due to the dynamic shift after separation, and plans for schooling may need to be reassessed for their suitability and practicality.

In practical terms, it would be beneficial for the parties to enter into a Child Support Agreement which stipulates the amounts payable for not only periodic payments of child support, but also the non-periodic payments such as private school fees.

These agreements can be all-inclusive and can ‘adjust’ the rates that have been assessed by the Child Support Agency to be higher or lower depending on the agreement.  It can also go into further detail and specify the proportions of private school fees and other expenses (such as private health) that each party will cover.

The agreements can be ‘limited’ or ‘binding’.

A limited child support agreement can be easier for the parties to renege from, and the parties can enter into a new agreement without the advice of lawyers to say the original one is terminated.  It also has a relatively short ‘shelf-life’ of approximately 3 years.

A binding child support agreement on the other hand is more difficult to get out of, and the parties are required to each obtain independent legal advice prior to entry, including being advised as to the advantages and disadvantages of entering into the agreement, and their rights at the time of entry into the agreement.

Both types of agreements have their own advantages and disadvantages and depend on the individual circumstances involved and expected outcomes.

It is vitally important that a binding child support agreement is drafted by an experienced lawyer, as an error in the agreement can result in large liabilities being incurred which were not contemplated or expected, and worse, can result in a dire financial situation if future financial circumstances are not considered carefully.

Obviously, the ability for parties to enter into a child support agreement relies on them being amicable and being able to come to an agreement after separation. 

If an agreement cannot be reached, and if subsequent attempts at negotiation or mediation are not fruitful, then ultimately the matter will need to proceed to court. In this instance, a court will need to determine if the child/ren remaining in a private school is feasible, is in the best interests of the child/ren and who will be responsible for the fees and in what proportion. 

Affinity Lawyers have experienced family lawyers on the Gold Coast who can provide legal advice in relation to a range of family law matters, including children’s issues.

Please feel free to contact our Runaway Bay office today on 5563 8970 to schedule a consultation with one of our solicitors today.

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