In the case of Masters v Cheyne the mother and father signed a Binding Child Support Agreement on 31 July 2008. The three children of the relationship lived with the mother and spent time with the father at the time the parents entered the agreement. At the time section 12(2)(b) of the Child Support Assessment Act 1989 provided that a parent ceasing to be an eligible carer (having at least 35% of all nights) would be a terminating event.
In September 2012 the mother moved interstate and the youngest child began to live with the father. By this time, the two other children had become adults. There had been an amendment to the CSAA so that the mother ceasing to be an eligible carer was no longer a terminating event. If the Binding Child Support Agreement remained in force, the father would be required to pay to the mother child support for the child the sum of $220 per week, indexed by inflation, until he turned 18 years of age, notwithstanding the fact that the child lived with the father.
The father made an application to the Family Court to set aside the Agreement under section 136 of the CSAA on the grounds that, in the exceptional circumstances since the Agreement was made, he would suffer hardship if the Agreement was not set aside. The trial judge found that the amendment to the CSAA constituted exceptional circumstances and that the father would suffer hardship if the Agreement was not set aside. He then made Orders setting the Agreement aside.
The mother appealed the trial judge’s decision to the Full Court of the Family Court. The Full Court allowed the appeal on the basis that the amendment to the CSAA was not an exceptional circumstance. It also found that the father, who earned approximately $192,000 gross per annum and had net assets valued at an excess of $1.1 million, would not suffer hardship if the Agreement were not set aside.
