ByLawyers News and Updates

FED – Family Law – Child support agreements

by

In line with the recent amendment to the Child Support (Assessment) Act 1989, By Lawyers have amended the child support agreements, binding and limited, in our Family Law – Children Guide, as well as the payee and payer letters of advice that accompany the binding child support agreement. These precedents are found in the Settling it Early section within the Child Support folder.

The changes concern the suspension of child support agreements when the payee is not an eligible carer and there are no arrangements in the agreement for change of care. We have consequently added a clause to each agreement that states:

In accordance with section 86(1)(2)(a) of the Act, the terms of this agreement are capable of being suspended for up 26 weeks if the payee ceases to be an eligible carer of the child for a period of 28 days or more.

The suspension period in child support agreements can be reduced to less than 26 weeks, however pursuant to the legislation, 26 weeks is the maximum suspension period.

Pursuant to the the Act, the eligible carer will cease to be eligible if they have less than 35% of time with the child. Therefore, if the liable parent has more than 65% of time with the child, this will mean the payee is no longer an eligible carer. In this case the agreement will be suspended and then possibly cease to operate in respect of that particular child pursuant to s 86(1)(2)(a). An optional clause is available that allows the parties to set their own limit that triggers termination:

This agreement will cease to operate in relation to each child … if the care arrangements for the child changes resulting in the payer having more than [insert limit]% care.

The accompanying advice letters discuss the issue and provide advice in addressing s 86.

This is a highly sensitive area for many clients. The By Lawyers guide assists practitioners to operate with confidence.

FAMILY LAW – LETTERS OF ADVICE FOR BINDING CHILD SUPPORT AGREEMENTS

by

Detailed Letters of Advice for Binding Child Support Agreements have been added to the Children publication in Family Law with one for the “payee” and one for the “payer”. The letters explain Child Support Assessments and the meaning and effect of  Binding Child Support Agreements on the client’s rights. Each letter also lists the particular advantages and disadvantages of Binding Child Support Agreements for the “payee” and the “payer”. The “payee” letter explains the advantage of registering the agreement where there are non-periodic payments.

Locate these letters on the Children matter plan in Settling it Early in the Child Support folder.

FAMILY LAW – BINDING CHILD SUPPORT AGREEMENTS

by

The Binding Child Support Agreements commentary has been updated with relevant case law.

Balzano & Balzano [2010] FamCAFC 11 at [40]-[41] and Gallup & Gallup [2009] FMCAfam 839 at [52]-[53] both demonstrate the extreme difficulty in having a binding child support agreement set aside.

Family Law – Binding Child Support Agreements

by

The Children’s commentary has been enhanced by adding further information regarding the binding nature of Binding Child Support Agreements and the discretion the Court may exercise to set an agreement aside. The Full Court of the Family Court decision in Masters & Cheyne [2016] FamCAFC 255 (2 December 2016) looks at what changes may be sufficient to enliven the Court’s discretion, and they are extremely limited. The Court’s view is that binding agreements are meant to be binding and possible changes in parental arrangements should be considered before executing the agreement.

Connect with us