What Happens to a Binding Child Support Agreement Change

But what happens when the parenting arrangements change and you have a Child Support Agreement in place, for example, the children now begin living with the mother most of the time rather than the father?

An option available to parents when they separate with respect to child support, is to enter into a Child Support Agreement. If done correctly, a Child Support Agreement ousts the effect of a Child Support Assessment and gives parties the flexibility to structure child support arrangements in a way that they see fit. But what happens when the parenting arrangements change and you have a Child Support Agreement in place, for example, the children now begin living with the mother most of the time rather than the father.

An option available to one of the parties may be to bring a Court Application to set aside the agreement, but such applications can be expensive. There is another avenue open to parties that was specifically addressed in amendments to the child support legislation in 2018.

Section 86 was inserted in the Child Support (Assessment) Act 1989 to provide for the suspension of Child Support Agreements when a person is no longer an Eligible Carer. An eligible carer is defined in the legislation as a person who has at least shared care of a child. Shared care is care of children ranging from 35-65% of the time, or, 5 – 9 nights per fortnight.

If a person has not been an eligible carer for 28 days or less, the Child Support Agreement is suspended until the care arrangements return to normal. This can be extended by agreement in the Child Support Agreement out to 26 weeks or less. However, the suspension is not indefinite, and the legislation provides that once either the 28 days or the 26 weeks expires, a party can rely upon Section 80D(2A) to cause the agreement to be terminated. This then opens a parent up to seeking a Child Support Assessment under the usual Child Support Formulas which do take into account changing parenting arrangements but follow a strict formula.

The Child Support Registry does have a special discretion to extend the suspension of a Child Support Agreement even further i.e. delaying the termination if you can satisfy them that special circumstances apply. The discretionary nature of special circumstances make it seem possible to give a precise list of factors that are taken into account, but some examples include:

The parent was seriously ill or in an accident;
The parent suffered a personal trauma such a death in the family, or a natural disaster caused damage to the parent’s property.
The parent was a victim of domestic violence.
There are other exceptional circumstances.

If the Registrar is satisfied there are special circumstances, the Registrar will then consider whether it is appropriate to exercise discretion to grant a suspension period for up to 26 weeks.

Child Support is a complex area of family law and there tends to 28-day time limits to object to decisions made by the Child Support Registrar. Child Support Agreements are also very technical documents that require legal advice before attempting to terminate or alter them. If you have a child support dispute, or a Child Support Agreement in place and wish to discuss the variation or termination of that Agreement, please contact our office on (02) 49443322 to make an appointment with Hayden Carr.