The Facts

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

Vote case A – the case for the father
Vote case B – the case for the mother

Sara Woolford
Child support
Stacks Collins Thompson

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.