Stacks Law Firm is a leading Australian legal service provider with more than 250 people operating locally in many Australian communities.
We are committed to supporting the legal needs of everyday Australians and businesses across every stage of life.
Separated couple enters into binding child support
agreement
The couple first started living together in 1994, were married
in 1995 and had four children together.
They separated in 2006 and in February 2008, they entered
parenting orders by consent, which provided that their youngest
child would live with his mother and spend time with his father for
five nights each fortnight during the school term and for half of
the school holidays.
In July 2008, the parties entered into a binding child support
agreement (BCSA) which provided that the father pay child support
to the mother for the youngest child in the amount of $220 each
week (indexed to inflation) until the child's 18th
birthday.
A BCSA is a binding agreement that can only be changed or set
aside by a court if exceptional circumstances have arisen.
Dad stops paying child support after youngest child moves in
with him
In April 2012, the youngest child, then aged 15 years and 4
months, started living with his father six nights each week and
staying with the mother one night each week. This was mostly
because the mother's relationship with him had become strained.
The father then stopped making child support payments to the
mother.
At the end of September 2012, the mother relocated from regional
NSW to Melbourne. At that time, the mother proposed that she return
to regional NSW for two-week blocks and that during that time the
son live with her. However, this never occurred.
Dad seeks to set aside binding child support agreement
On 6 March 2013, the father commenced proceedings seeking to set
aside the BCSA. It was up to the court to determine whether the
changes in the youngest child's living arrangements since the
BCSA was entered into amounted to exceptional circumstances.
case a - The case for the father
case b - The case for the mother
The reason I entered into the BCSA and agreed to pay child
support to my ex-wife was because she had the primary care of our
youngest son, who was living with her 80% of the time.
She no longer has the primary care of that child except,
perhaps, for two per cent of the year. This has been the case for
more than 18 months.
If the BCSA is not set aside, it means that I will have to pay
$31,200 in child support to my ex-wife. That payment does nothing
to support our youngest son, it simply goes to supporting my
ex-wife. That's clearly not what the child support legislation
was created for.
Further, if I have to make the child support payments it will
cause me financial hardship and make it more difficult for me to
support our son.
The radical increase in my time spent caring for the child,
from 20% to 100%, is an exceptional circumstance and the BCSA
should be set aside.
Just because circumstances change and the original deal becomes
less fair to one of the parties doesn't mean that
"exceptional circumstances" have necessarily arisen.
Before my ex-husband entered into the BCSA he received
independent legal advice, so he knew there were potential risks and
that the agreement was intended to be binding. The agreement had
its benefits too for my ex-husband, because it provided him with
certainty into the future.
A change in our son's living arrangements so that he spent
more time living with my ex-husband in future was reasonably
foreseeable when we made the agreement, especially since it was an
agreement intended to last for many years. There was nothing
exceptional about this fact.
The evidence shows that even after payment of the child support
my ex-husband will still have excess income, so his argument of
financial hardship shouldn't be accepted.
The BCSA should not be set aside and my ex-husband should pay
me what we agreed.
So, which case won?
Cast your judgment below to find out
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.