Loading...

Setting aside a binding child support agreement

1 October 2020

We’ve all heard the words “exceptional circumstances” and “unprecedented times” this year, but do any of them apply to setting aside a binding child support agreement?

Courts recognise only very limited grounds for setting aside any kind of child support, particularly a binding child support agreement.

In the past, some “exceptional circumstances” recognised by the courts have been:

  • A radical change in child care arrangements. For example, the child going from 80 per cent of time spent with one parent, to 20 per cent of the time.
  • One parent moving to another country – although during the current COVID-19 pandemic, with travel restricted, this is rarely going to be an option.
  • One parent being made redundant from a long-term job and being unable to secure new employment

There are a number of options for parents to arrange child support to be paid.

One is that some parents, if they have an amicable relationship, have an informal agreement and one parent pays the other privately.

Alternatively, parents can apply for child support through the Department of Human Services (Child Support), commonly called the Child Support Agency.

The agency uses a formula to calculate how much a parent should pay, based on the age and number of children, the income of both parents and how many nights the children spend with each parent.

The assessed amount can be paid directly to the parent, or can be paid through the agency. The agency also has powers to garnish a person’s salary and bank accounts in some circumstances.

Private agreements between parents can also be registered with the child support agency, although both parents much obtain independent legal advice before signing such an agreement.

A binding child support agreement will often include details of which parent pays school fees, health insurance or other additional costs.

It’s no easy task to set aside a binding child support agreement.

The court recently considered an application by a mother (the receiving parent) to enforce the terms of the binding child support agreement as the father was not paying various medical and school costs.

The father sought to set aside the binding child support agreement due to “exceptional circumstances… that have arisen since the agreement was made, the application or child will suffer hardship if the agreement is not set aside.”

In this case, the father argued that:

  • His high income meant that he was already assessed to pay the highest possible amount of child support, on top of which he was expected to pay the medical and school costs.
  • He did not agree that the children should go to a private school, and therefore did not agree to pay the school fees and
  • The legal fees he had incurred of around $200,000 were a significant liability that affected his financial position

However, the court did not agree that the agreement should be set aside, as the issues raised by the father as “exceptional circumstances” were in existence when the agreement was made, and should have been known to the father.

In particular, the parties had thought about sending the children to private schools during the relationship, and the binding child support agreement particularly referred to “school fees”.

The court enforced the binding child support agreement and ordered that the father repay the arrears owing to the mother.

If you need help navigating child support payments, contact Michael Lynch Family Lawyers for expert, personalised legal advice by calling (07) 3221 4300 or by filling out our Online Contact form.

Setting aside a binding child support agreement. Accompanying image: mother, son and daughter sit on bed with happiness and smile in bedroom.
2021-11-05T15:43:35+10:00

Client Testimonials

Michael Lynch Family Lawyers have really listened to me. I felt confident my case was handled well. The law has changed recently, and I did not feel that a previous law practice I spoke to was suitably up-to-date.
P.B., Carindale

I would like to thank your firm for the support and compassion shown while dealing with my matter.

C.M., Brisbane
I appreciate my lawyer’s professional approach and her being on top of my situation.
N.S., Mt Gravatt
My lawyer acted with professionalism in all her dealings with me and with the lawyer on the other side. I was always kept in the loop. I liked her approach. Thanks.
D.S., Coorparoo
I was impressed by my solicitor’s attention to detail and her concern for me, and that the process was explained to me and that I understood it at all times.
B.W., Chapel Hill

We had such a positive experience with Michael Lynch Family Lawyers, and we highly recommend their services. Meticulous attention to detail, attended quickly to every additional request we made, and made sure we always knew exactly where we were every step of the way. Our lawyer took what was such a stressful and emotional time for our family, and made the process feel so smooth and seamless.

N.B., Brisbane
Michael Lynch Family Lawyers always gave me competent and knowledgeable advice. I was consistently kept up to date. The meetings and phone calls were kept business-like, yet caring and thoughtful of my emotional state at the time. Thank you.
J.S., Holland Park
Thank you for your ongoing conciliatory approach in this matter and as always I appreciate your level headed advice. I certainly feel that I ended up with the right Solicitor.
S.C., Nundah
The professionalism and reliability delivered by Amy Honan was fantastic. I had an urgent matter around my property sale and Amy offered to provide assistance over a weekend if I required it – that’s above and beyond!
E.F., Nundah

Your staff is knowledgeable, professional and very calm.

A.C., Helensvale

You, guys, provide extraordinary service.

A.O., North Brisbane

After utilising the mediation services team recommended by your organisation, my ex-partner and I were able to reach some interim agreements about parenting. I am incredibly grateful for the advice provided by Debra Effeney; and found your firm’s services to be exceptionally professional. If we needed to consult a family lawyer in the future, we would have no hesitation in reconnecting with your firm.

K.M., Paddington
Amy, thank you for all that you have done during this matter. You impressed me with your professionalism from our initial meeting, and you have proven beyond doubt, to have had the skills and knowledge required. You are a credit to the company, and I would highly recommend you to anyone in a similar situation.
R.P., Cleveland
My family lawyer was very helpful in assisting me to combat a very ugly situation without stooping to the low levels that the other solicitor attempted to take us.
M.J., Manly
I like your friendly service and the ability to speak to my solicitor directly.
R.G., Wishart
I like that my lawyer treated me like a friend and kept jargon to a minimum. She was easy to contact and kept me informed.
L.R., Samford
Thank you for the great newsletter. Your article on “Coping with Christmas” is brilliant – clear, caring and helpful. Thanks again!
C.T., Bribie Island

My solicitor is a good listener. My documentation maintained the high moral ground.

S.S., Hamilton

Michael Lynch Family Lawyers know what they are talking about.

R.M., Warwick

My lawyer was the most knowledgeable of all lawyers I spoke to when looking for a lawyer. Michael Lynch Family Lawyers showed professionalism.

R.R., Brighton
I always felt that the service provided by Michael Lynch Family Lawyers was of a high standard. Each time, after appointments I came away feeling secure. Keep doing what you are and maintain the ‘family feel’ that permeates your services.
C.W., Brookfield
Amy, thank you. You have been diligent, accurate and pro-active for the entire duration of my matter. I appreciate it.
R.P., Cleveland
Your newsletters are great, I appreciate them.
K.B., Carina

Thank you for being very personable, professional and always providing me with the most appropriate advice in my times of difficulty. The other party’s lawyers were extremely aggressive, while Michael Lynch Family Lawyers remained calm and professional.

S.D., Parkinson

My lawyer has been an amazing help through this stressful time. I will remember her help for the rest of my life. Thank you.

J.H., Brisbane
If I need a family lawyer in the future I’ll be heading to Michael Lynch Family Lawyers again.
C.W., Brookfield
My solicitor provided a personalised service, prompt and quick responses and cost information prior to my commitment.
G.C., Southport
I liked my solicitor keeping things as simple as possible.
S.M., Clayfield
A personalised and professional service. Information has been clear and provided timely to assist my decision-making.
S.S., Hamilton
Thank you, you placed my needs first, you were aware of the need to reach a final result and not get caught up in the personal issues of the other party.
S.L., Moranbah
The staff at Michael Lynch Family Lawyers were great. Everyone was fantastic, professional, understanding, caring and always communicated with me. I knew I was in good hands.
A.A., Eatons Hill
Your team is professional, warm, friendly and real.
N.R., Crows Nest

Thank you, you kept me sane in a difficult situation and gave me the encouragement and the confidence to keep going. You made me feel extremely comfortable.

A.M., Chambers Flat

Michael Lynch Family Lawyers are easy to deal with, and your systems are good.

D.T., Ferny Grove

Thank you very much to everyone at Michael Lynch Family Lawyers. Thank you for helping me get my life back and make a fresh start. To have that fresh start without fear and anxiety is priceless.

A.A., Perth
Michael, thank you again for your presence here yesterday. We really appreciated the clarity and accessibility of your presentation. It is a rare thing to find somebody who not only has expertise, but also has a skill in communicating it.
J.S., Brisbane

I’m very glad ‘Michael Lynch Family Lawyers’ is my lawyer and not the other side’s solicitor.

S.S., Hamilton
May I take this opportunity to express my gratitude to you and your staff for the excellent professional services I received. In a word, priceless.
D.H., Hendra
I really appreciated the happiness of your secretarial staff.
G.C., Clayfield
Amy, thanks very much to you and your team. Throughout my dealings with MLFL I have been continually impressed with your level of professionalism and, in particular, your understanding of circumstances and the articulate way you conduct yourself. I was completely satisfied with today’s outcome and without your experience and expertise in family law I doubt that the result would have been achieved.
M.R., West End
Thank you for the outstanding legal advice you have provided and professionalism in which you conduct yourself. I am truly thankful that it was you who represented me.
M.T., Stafford

I just wanted to get in touch to say thanks for helping me get through my custody and settlement. Thanks again to you and your staff. You have had a significant positive impact in my kids’ lives!

B.S., Brisbane
Many thanks for your assistance – life is now great – I’m moving on.
J.K., Mansfield
Your team’s communication with me was exceptional, I knew exactly what was happening.
A.A., Eatons Hill
Amy’s work was extremely professional but above all she has a manner and wisdom in dealing with people under stress. I will be recommending your firm to anyone that requires assistance.
K.H., Augustine Heights

I have appreciated the way that you and the staff at your firm have handled my situation. I would especially like to mention the professional and caring way my lawyer conducted my case, I am deeply grateful and extremely happy with the results. I will be referring others to your service.

J.H., Wellington Point
Thank you for providing me with a professional yet empathetic approach to gain the best outcome for me. My solicitor was excellent in explaining the processes and in representing me in Court. You have great customer service!
T.V., Everton Park

I was always confident that I was getting the very best advice.

T.S., Flinders

Thank you for helping me through this difficult time. You have been caring, compassionate and efficient. Some of my divorcing friends have not been so fortunate. In my mind, you are the best family lawyer in Brisbane. If anyone I know needs a good family lawyer, I will tell them to speak to you. Thanks again.

B.T., Clayfield
I was guided through a really difficult time with expertise of Michael Lynch Family Lawyers. I am more than happy with the outcome of mediation.
J.H., Windaroo

Many thanks to Stephanie for her help and support through this time, I was incredibly impressed with her work.

L.K., North Lakes
I appreciate you being upfront with fee estimates. You also have a fantastic website and the seminars REALLY helped to get me focussed.
T.C., Tarragindi
Michael is very personable and very good at covering the material and explaining the strategy.
J.O., Hawthorne

At Michael Lynch Family Lawyers I got professional and ‘no-nonsense’ advice, costs were within quoted amounts and my matter was resolved quickly – well done!

L.R., Ascot
So pleased to have had a good, sound and knowledgeable firm.
C.W., Brookfield
Lovely to deal with and provides a balanced view in what are very difficult circumstances.
A.C., Morningside

I was very impressed with the initial interview. Everything was well-explained, and the advice was honest about what I should expect.

C.M., Morningside

I really liked the personable service by Michael Lynch Family Lawyers, the simple plain language you adopt and everyone’s patience.

A.O., Kedron

Thank you Debra for all the work you did for me, you both made the process manageable and brought sense to the chaos.

R.B., Toowong