Binding Child Support Agreement
terminating a child support agreement
How to Terminate a Child Support Agreement
Child support agreements must be approached with caution as it is extremely difficult to vary or terminate an agreement already in place. There are limited ways to terminate a child support agreement, and this will depend on how the agreement has been drafted and what provisions are included. A child support agreement is generally terminated by a new agreement that replaces it, or by a termination agreement. In summary, a binding child support agreement may be terminated by:
- Both parties creating a new binding agreement which includes a provision that the previous agreement is terminated;
- Both parties entering into a termination agreement which has the effect of terminating the previous child support agreement;
- A Court Order setting aside the child support agreement under Section 136 of the Child Support (Assessment) Act 1989 which includes the following circumstances:
- The party’s agreement was obtained by fraud, undue influence, duress or unconscionable conduct;
- Exceptional circumstances arising after the agreement is made, which would cause hardship to the child or a party to the agreement if the agreement was not side aside.
- Notifying the Registrar that the parent receiving the child support ceases to be an eligible carer.
The notion and definition of ‘exceptional circumstances’ raised above are often focused upon when these matters are brought before the Family Courts. The matter of Keane & Keane and Ors  FamCA332 defined exceptional to be the whole circumstances needing to be taken into account.
Venson & Venson (No. 2)  FamCA 963
The father’s financial circumstances had become parlous. Justice Austin found that the deterioration in the father’s financial circumstances, which occurred after the child support agreement was made, did not constitute “exceptional circumstances.” However, a feature of the father’s financial circumstances was a failure of a company that employed him, to continue to provide him with the income stream that both parties assumed would continue when they entered into the agreement. Both parties agreed that this was failure of a fundamental condition of the agreement. The Registrar nonetheless pressed for enforcement of the agreement. His Honour held that a failure of a fundamental condition of the agreement did constitute “exceptional circumstances.”
The Next Step
If you would like to advice about entering or terminating a Binding Child Support Agreements, contact us on 8391 8411 to book a free 30-minute consultation with us to discuss what steps you should take next.