Terminating a Child Support Agreement
How do I end a Child Support Agreement?
Sometimes parents enter into child support agreements and their circumstances change, making the agreement unfair or sometimes impossible to comply with. This could be because the parenting arrangements have changed, a parent’s financial commitments have changed or either parent’s income has changed.
Getting out of a child support agreement can be very complicated. Our team of expert lawyers are able to advise you as to your options and the best way forward in such a situation, which may involve applying to court or trying to find more practicable and cost-effective solution, where possible.
Applying to a court to end an agreement.
A person can apply to a court to set aside child support agreements, in circumstances where:
- The agreement was obtained by fraud or failure to disclose information;
- One of the parties exerted undue influence or duress to obtain the agreement; or
- One of the parties engaged in unconscionable or other conduct.
In the case of a limited child support agreement a court can set aside the agreement, if:
- There is a significant change of circumstances of the parties or child under the agreement and it would be unjust not to set it aside; or
- The agreement provides for an annual rate of child support that is not proper or adequate taking into account all the circumstances of the case (including the financial circumstances of the parties to the agreement).
In the case of a binding child support agreement that because of exceptional circumstances, relating to a party to the agreement or a child in respect of whom the agreement is made, that have arisen since the agreement was made, the applicant or the child will suffer hardship if the agreement is not set aside.
Courts have imposed a particularly harsh threshold when it comes to setting aside a binding child support agreement. It must be shown that:
- There are exceptional circumstances since the agreement was entered into;
- Continuing to comply with the terms of the agreement would cause hardship to the child or applicant applying to set the agreement aside; and
- Is it just in all the circumstances that a court set aside the agreement, which often involves weighing up the parties respective financial circumstances and the possible outcomes.
Automatic Suspension of Agreements where there are changes to care arrangements
The law has changed recently and either type of child support agreement will be automatically suspended and terminate in the following circumstances.
- Where the person receiving child support payments under an agreement, has less than 35% care of the children, the agreement will suspend and child support will be paid at the assessed rate; and
- After the person receiving child support, has less than 35% care of the children for 28 days (or in special cases 26 weeks) the agreement will be terminated.
Applying for a stay of enforcement
The court process can take a long time often more than 12 months. If applying to set aside your agreement, the agreement remains enforceable and amounts due under the agreement need to be paid while your case is going through court.
Depending on the terms of your agreement, the Services Australia: Child Support (CSA) may be collecting payments. The other party to the agreement may be seeking orders for enforcement.
If you want to suspend enforcement under the agreement, you need to seek a stay order. This stay order can be made while your case is going through court.
Before a stay is ordered the court must consider:
- The impact to each of the parties of ordering a stay;
- Whether the applicant has an arguable case to set aside the agreement; and
- The balance of convenience.
A stay can be made subject to terms and conditions and may for example, provide for a reduced rate of child support to be paid, rather than a complete suspension of payments. Our team of lawyers can assist you to understand the nuances of seeking a stay and whether it is a good idea to seek a stay in your case and if so what type of stay order would be best.