“We agreed on child support – now our circumstances have changed. Do I still have to pay?”
Before telling you the facts, let me tell you about the law. When a couple who have children together decide to separate, in all but the most exceptional of circumstances, one of the parents usually pays the other parent child support. The amount to be paid my be determined in a number of ways – for example, by agreement between the parties; by assessment by the Child Support Agency; of by a Court order.
In July 2008 a couple entered into a Binding Child Support Agreement (BCSA) which basically said that the father was to pay child support to the mother for their youngest child in the amount of $220 per week (indexed to inflation) until the child’s 18th birthday.
Approximately 4 years later, when the child was 15 years old, he started living with the father for 6 nights per week and with his mother one night each week. The father stopped making child support payments to the mother.
About 6 months later, the mother relocated to another State and told the father that she would return to their city for 2 weeks blocks and that the child could live with her during that time. She never returned to the State.
The father approached the Court asking that the BCSA be set aside because:
- The child was now living with him on a full-time basis whereas he was only living with him 20% of the time when the BCSA was signed.
- The mother no longer had primary care for the child except for, if and when she returned to the State.
- The money the father was paying was not being used to support the child, it was being used to support the mother at the rate of $31,200 per annum.
- The ongoing payment would cause the father financial hardship thereby making it more difficult for him to support the child.
The mother opposed the father’s application and said that the BCSA should remain in place and the father ought to continue making the payments because:
- Just because the circumstances changed and the original deal becomes less fair to one of them doesn’t mean that ‘exceptional circumstances’ have arisen.
- The father knew about the potential risks involved in entering the agreement and that the agreement was intended to be binding because he had received legal advice before agreeing to sign the BCSA.
- A change in the child’s living arrangements so that he spends more time with the father was reasonably foreseeable.
- The father had a reasonable income and even after making the ongoing payments he would still have excess income and therefore would not cause him financial hardship.
Initially, the Court agreed with the father’s argument, but on appeal reversed its decision and ordered that the father continue to make the child support payments to the mother even though she no longer had care of the child.
BEWARE before entering into a BCSA. It is intended to be binding despite changes in circumstances. An alternative may be a limited agreement that can be more easily terminated of varied in the event of a change in circumstances.