Commonwealth Consolidated Acts

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CHILD SUPPORT (ASSESSMENT) ACT 1989 - SECT 136

Power of court to set aside child support agreements or termination agreements

             (1)  A party to either of the following agreements may apply to a court having jurisdiction under this Act for the court to set aside the agreement:

                     (a)  a child support agreement that has been accepted by the Registrar under section 92 or 98U;

                     (b)  a termination agreement, or a written agreement referred to in paragraph 80G(1)(b), that has been accepted by the Registrar under section 92.

             (2)  If a party has applied under subsection (1), the court may set aside the agreement in accordance with the application if the court is satisfied:

                     (a)  that the party's agreement was obtained by fraud or a failure to disclose material information; or

                     (b)  that another party to the agreement, or someone acting for another party:

                              (i)  exerted undue influence or duress in obtaining that agreement; or

                             (ii)  engaged in unconscionable or other conduct;

                            to such an extent that it would be unjust not to set aside the agreement; or

                     (c)  in the case of a limited child support agreement:

                              (i)  that because of a significant change in the circumstances of one of the parties to the agreement, or a child in respect of whom the agreement is made, it would be unjust not to set aside the agreement; or

                             (ii)  that 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); or

                     (d)  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.

          (2A)  If a party has applied under subsection (1), the court may also set aside the agreement in accordance with the application if the court is satisfied that:

                     (a)  the agreement was made before 1 July 2008; and

                     (b)  the agreement was made without at least one of the parties to the agreement receiving independent legal advice, before entering the agreement, from a legal practitioner as to the matters referred to in paragraph 80C(2)(c); and

                     (c)  it would be unjust and inequitable if the court does not set the agreement aside.

             (3)  Subject to section 145 (Registrar may intervene in proceedings), the parties to a proceeding under subsection (1) are the parties to the agreement.

             (4)  If:

                     (a)  the court sets aside a child support agreement under this section; and

                     (b)  the court is satisfied as mentioned in paragraph 117(1)(b) (departure orders);

the court may make an order under Division 4 of Part 7 without an application having been made under section 116.

             (5)  If:

                     (a)  the court sets aside a child support agreement under this section; and

                     (b)  the court is not satisfied as mentioned in paragraph 117(1)(b) (departure orders); and

                     (c)  the payee has received or will receive benefits pursuant to the agreement;

the court may still make an order that departs from the administrative assessment where it is just and equitable to do so, having regard to the benefits that the payee has already received pursuant to the agreement.



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