I have a BCSA agreement. There is a terminating clause that reads "The agreement will cease to operate in relation to

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Customer: Hi. I have a BCSA agreement. There is a terminating clause that reads "The agreement will cease to operate in relation to each of the children; (i) in the event that the liable parent's earning capacity, through no election, decision, conduct or misconduct whether by him or his agent causes his said earning capacity , in the opinion of a court has reduced below $179,000 per annum.
JA: What state are you in? It matters because laws vary by location.
Customer: Queensland
JA: What steps have you taken so far?
Customer: I have been stood down from work until at least the middle of June. I wroote to my ex and said that it was understanding the clause was triggered. I contacted the CSA and provided supporting docs from work that I had been stood down. My ex disagreed and has asked the CSA to collect on her behalf. They have informed me that it is there view that the words "in the opinion of a court" means that it can only be set aside by a court.
JA: Anything else you want the Lawyer to know before I connect you?
Customer: I want to know what I can do to start the application to have it set aside.

Answered by John Melis in 11 hours 2 years ago

John Melis

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John Melis, Expert

Hi I am John

The grounds for departure orders are set out in s 117(2) of the Child Support (Assessment) Act 1989.

The Registrar has a broad power to amend a child support assessment at any time in order to give effect to the provisions of the Child Support (Assessment) Act 1989: s 75(1).

The key element in your case is the documents that have been provided by your accountant to CSA and the ATO returns and what other evidence was provided.

To calculate your child support please use the following link:

https://processing.csa.gov.au/estimator/About.aspx

Thank you for reaching out today.

You have a legal right to protect your interests in this important situation.

I am a user like you in this chat forum to assist in your important question today.

Thank you kindly for rating me with 5 stars, which helps me support the community.

You can come back to this post any time to ask questions without additional charge.

I hope I have assisted with answering your important question today, and thank you for supporting the community.

Customer

I intend to put in an application for the BCSA agreement to be set aside on the grounds that this clause has been triggered. I have been stood down from work until at least the middle of June and likely until September. I will be receiving Jobkeeper only. The CSA have said that can’t agree that it’s now void and intend to collect from 7 June onwards. By then I will be somewhere between $3,500 and $5,000 in arrears according to them. The agreement is $1400 pf, but my net pay will be around $1,300, meaning they will take it all, leaving me nothing to live on.

John Melis, Expert

ok, this is a good way forward

Customer

What I don’t understand is why I need to go to court when we have an exit clause that describes the exact situation I am in. What is your understanding of the phrase “in the opinion of a court”? It makes no sense to me that you define an exit clause that then requires a Judge to rule on it. That seems to be the exact opposite to the purpose of defining an exit clause.

John Melis, Expert

that phrase is how the court makes an answer to a problem or issue, it is the judge speaking on the court in regard to their determination of the issues before it

Customer

I’m not sure I understand what you mean. Are you saying that it doesn’t mean that a judge needs to decide if my situation is the same as that described by the clause?

John Melis, Expert

Jude is deciding on behalf of the court

Customer

Then there is no point in the clause being there in the first place as my circumstances are clearly “exceptional” and they are exactly as described by the clause. Would you consider it a mistake on the part of my barrister to word it in such away that it required a judge to determine the outcome. It was explained to me that this clause would be triggered and there would be no need to return to court.

John Melis, Expert

If you prefer to talk on the telephone, I have sent you a special offer of $8.00 to assist you in more detail, as it will make it easier to discuss your matter. I kindly request that you complete the details on the offer, and we can talk straight away as you need. Otherwise, we can keep chatting in this box.

Customer

Maybe tomorrow. Time for bed. Thanks.

John Melis, Expert

You are welcome, and thank you for supporting the community.

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