- A court can set aside a Limited Agreement or a Binding Agreement if the agreement was obtained by fraud or the failure to disclose material information; or
- the court is satisfied that undue influence, duress, or unconscionable or other conduct was applied to secure the agreement; or
- in the case of Limited Agreements, a court can set the agreement aside if there is a significant change in the circumstances of either party or the child, or if the agreement provides for an annual rate of child support that is not proper or adequate; or
- in the case of Binding Agreements, a court can set aside the agreement if exceptional circumstances occur after the agreement is made, that would cause hardship if the agreement was not set aside.
[see Child Support (Assessment) Act 1989 (Cth) s 136]
It is clear from this section that parties should provide full and frank disclosure of their financial positions at the time of negotiating an agreement. It is also important that neither party, nor someone acting on their behalf, use any undue pressure or coercion to secure the agreement of the other party, because this can provide the grounds to have an agreement set aside.
In addition, parents should be aware that it is very difficult to set aside a Binding Child Support Agreement by showing ‘exceptional circumstances that would cause hardship’. There have been several cases where this test has been very difficult to make out. Changes in income, the birth of new children, even changes in care arrangements of the children are not always sufficient to satisfy a court that there are ‘exceptional circumstances’.
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