BINDING CHILD SUPPORT AGREEMENTS TWILIGHT SEMINAR WEBINAR Child

BINDING CHILD SUPPORT AGREEMENTS TWILIGHT SEMINAR / WEBINAR – Child Support Applications in the Courts Judge Margaret Cassidy 1 March 2018

TODAY’S PRESENTATION: 1. Types of Agreements 2. Setting aside Agreements 3. Fraud/failure to disclose 4. Undue influence 5. Defining ‘exceptional circumstances’ 6. Practical considerations

Limited Child Support Agreement OR Binding Child Support Agreement

Limited Child Support Agreements • Formal requirements, section 80 E CSAA • Termination of a Limited Child Support Agreement: i. Can be terminated and replaced, BUT ii. Cannot be varied Attribution: "Miniature Sunset Cake" (CC BY-NC-ND 2. 0) by Petit. Plat - Stephanie Kilgast

Limited or Binding Agreements must comply with the following provisions (section 81): Section 82 Section 84 Section 83

Limited or Binding Agreements must comply with the following provisions (section 81): Section 82: The children " 933" (CC BY 2. 0) by _Dinkel_

Limited or Binding Agreements must comply with the following provisions (section 81): Section 83: The parties (Parent or non-parent carers) "Parents" (CC BY-ND 2. 0) by jbachman 01

Limited or Binding Agreements must comply with the following provisions (section 81): Section 84: o o Periodic child support Non-periodic child support Lump sum payments Variation of annual rate and end date Attribution: "Aussie money notes" (CC BY 2. 0) by vagawi �

Binding Child Support Agreements Formal requirements: • Must be in writing • Signed by the parties • Statement of independent legal advice • The Agreement has not been terminated • The Agreement or copy given to each party "balance" (CC BY-SA 2. 0) by iulian 28

Setting aside Agreements

Setting aside Limited Child Support Agreements: Section 136(2)(c) CSAA requires: • Significant change of circumstances OR • Agreement is not proper Note: This test for setting aside the Agreement is far easier to satisfy that the test for a Binding Child Support Agreement

Setting aside a Binding Child Support Agreement Section 80 CA - • Agreement cannot be varied • Can be terminated through consent Section 136(2) – (By court) • Fraud or failure to disclose material information • Undue influence, unconscionable or other conduct • Exceptional circumstances (Applicant or child suffer hardship)

Fraud/ Failure to disclose

Fraud or failure to disclose FRAUD – • No reported cases but see s 79 A(1)(a) and s 90 K(1)(a) FLA: “conscious wrong doing or some form of deceit” FAILURE TO DISCLOSE – • Venson v Venson (No 2) (2010) Fam CA 963 "Sailing in Carrick Roads" (CC BY 2. 0) by Tim Green aka atoach”

Fraud or failure to disclose cont. FAILURE TO DISCLOSE – • Telama & Telama (No. 2) [2017] Fam. CAFC 194 at [29]: “…the fact of non-disclosure was so obvious and material it was necessary for the primary Judge to explain how and why the Respondent’s oral evidence and unsworn explanation were sufficient to meet that deficiency and resolve the confusion created by his failure, for example, to produce necessary and requested documents. Her Honour’s reasons do not address that conundrum and in circumstances where the legal onus sat with the Respondent the findings as to ‘exceptional circumstances’ and ‘hardship’ were not available. ”

Undue influence/ duress/ unconscionability

Undue influence/duress/ unconscionability Venson (No 2) (Supra) per Austin J at [66]: “…in simplistic terms, unconscionable conduct is evocative of unscrupulousness by reason of which one party take improper advantage of another. The father has failed to prove that the mother acted in that vein, …”

What are exceptional circumstances?

Exceptional circumstances • Can cumulative factors make up exceptional circumstances? Gallup v Gallup (2009) FMCA Fam 839 at [90]: “It seems to me that none of the factors, of themselves, put forward by the father are exceptional but that cumulatively they take on a difference character, which I find amount to exceptional circumstances. ”

Exceptional circumstances cont. Balzano (2010) Fam. CAFC 11

Exceptional circumstances cont. Master v Cheyne (2016) FCC 98 -072 • Murphy J says change in s 12 CSAA terminating events are relevant in determining exceptional circumstances • Aldridge J says change in s 12 CSAA terminating events are not relevant in determining exceptional circumstances "Dice" (CC BY 2. 0) by eclesh

Exceptional circumstances cont. Jessup v Jessup [2010] FMCA 124 • Husband’s evidence inadequate as to his income, expenses and net asset position

Practical considerations

Practical considerations q. Consider advising client on a Limited Binding Child Support Agreement, Departure Order and assessment under the legislation q. Ensure that adequate disclosure has occurred if entering a Binding Child Support Agreement q. Ensure the client advised of the advantages and disadvantages before executing the Agreement q. Provide the Department of Human Services with a copy of the draft Agreement to obtain approval prior to the document being executed by the parties q. Define any terms clearly in the Agreement

Practical considerations q Ensure the Agreement deals with: Changes to care arrangements; ii. Unemployment and other income changes; iii. Re-partnering and second families; and iv. Additional child support cases. i.

Acknowledgment This presentation was gratefully assisted by the following papers: Melinda Winning, ‘Binding Child Support Agreements: Exceptional or Inflexible? ’ Family Law Intensive, 2014, Perth *Brett Walker-Roberts. Department of Human Services. ‘Child Support Agreements. ’ Family Law Section, Law Council of Australia. Grant Thornton Publishing. *Please note that Brett Walker Roberts’ paper is currently available to delegates of the Family Law Intensives and will be made available to all Law Council members in June 2018.

Bibliography A. Cases Balzano (2010) Fam. CAFC 11 Gallup v Gallup (2009) FMCA Fam 839 Jessup v Jessup [2010] FMCA 124 Master v Cheyne (2016) FCC 98 -072 Telama & Telama (No. 2) [2017] Fam. CAFC 194 Venson v Venson (No 2) (2010) Fam CA 963 B. Legislation Child Support (Assessment) Act 1989 (Cth) Family Law Act 1975 (Cth)