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Going to court to try to get an agreement set aside

I signed a Child Support Agreement in 2007 following 10 months of negotiation around property and child arrangements.  Under the property settlement I kept an investment property with limited equity and super - she got the family home with lots of equity, the family car and some of my super.  The child support agreement required that I pay the CSA assessed amounts plus school fees, book lists, school uniforms and medical insurance over and above the assessed payments.  I agreed as the ex would not agree to shared care without the agreement in place - she didn't want to move out of the family home; and my Mother had agreed to pay the "extras".  I'm paying just over $1000 each fortnight plus another $370 or thereabouts in "extras", including sports costs as the ex won't pay those either.

I've respected the agreement to date.  My Mother gave me $10K in 2007 and again in 2008; and although I lived in an old wooden shack that rained inside when it rained outside and had termites in the walls, my sons and I enjoyed a reasonable life.  However, her health has deteriorated significantly (dementia, maybe alzheimers) and she called me early in 2009 to say that she didn't feel that she could pay anymore - I gained the impression that my brother and sister had intervened as they were uncomfortable with the arrangement given her health (increased risk of long-term care) and the GFC.  I moved to a 5-bed home partially because my oldest son had started to refuse to bring friends round to my wooden shack and partially to get International students.  in 2009, I had one student for 6 months and two for the other six months and, although it was hard doing an executive job during the day and looking after students at night, I just about made it through the year - credit card reached $8,000 but had it down again close to Xmas.

Early this year I lost a student.  By March my credit card was back to $6,500 and I realised that it was just going to prove too hard to continue.  I had contacted my ex last October to change the agreement - and received a resounding no.  I had checked with CSA and discovered that I am paying around twice the amount - the changes in July 2008 would have benefited me quite considerably.  I was really worried about going to court because I felt the kids would get really upset again - as in 2006 - so I didn't do anything till March, then I finally decided I would act.

I submitted my application in April - to have the agreement set aside.  I went to court in May and have a trial date of 6 August.  However, the magistrate warned me that I would need to make absolutely certain that I had a sound case or I would have costs awarded against me.  I must admit I freaked out a little at this - went to see the Duty Solicitor and felt trapped - go ahead and I might lose lots of money - go back and the ex would probably chase me too.  The Duty Solicitor found me a barrister who thinks I have a case and that it would be unlikely that I would have costs awarded against me - quotes Kildea 2008.  However, both the Duty Solicitor and Barrister have suggested that I consider legal support - as the arguments are technically complex.

As I've never self-represented I'm naturally cautious and nervous.  But my research shows several things.  Firstly, section 136 of the Act allows for the setting aside of an agreement when the agreement has been established under undue influence or duress.  I believe this applies - though I have been told it won't get me over the line because I had legal advice at the time.  Secondly, an exceptional change in circumstances is also reason to set aside an agreement.  The barrister indicated that this was strong in my case - I no longer receive $10,000.  The difference between the assessed amount and what I am paying in substantial.  My financial situation has deteriorated.  My cost of living expenses are likely to increase.  In addition to this there is the argument that the agreement is transitional (ie not binding) and that my circumstances would be readily sufficient should the agreement be limited.  Finally there is the argument that the agreement is misaligned with the objects of the act, in particular that changes in living standards have not applied in equal measure to both parties.

I'm in a quandary.  I stand to gain around $45,000 should I win (over around 3 years).  I've been told that legal support will cost around $25,000.  I think if I lose I might end up bearing around $6,000 in costs (have to verify that figure).  So I could be in same situation with another $31,000 to deal with - yummy!!  Or I win.  So self-representing looks sensible though scary.

I'm wondering what others here think.  Do I have a case?  Am I right re awarded costs (the amount)?  Should I seek legal support?  If I do self-represent how long and detailed should my opening statement be?  What affidavids will I need?  Does anyone have a sample Outline of Case (setting out relevant chronology, orders sought, documents to be relied on at trial and summary of argument)?  Will I need to cross-examine any witnesses?
Alexnichollson said
I'm wondering what others here think.  Do I have a case?  Am I right re awarded costs (the amount)?  Should I seek legal support?  If I do self-represent how long and detailed should my opening statement be?  

What affidavids will I need?  Does anyone have a sample Outline of Case (setting out relevant chronology, orders sought, documents to be relied on at trial and summary of argument)?  Will I need to cross-examine any witnesses?

AlexNichollson said
Do I have a case?

Section 136(2) Includes four reasons, each of which can individually result in an agreement being set-aside.

Child Support Assessment Act said
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 partys 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 agreementthat 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.
   (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.


I don't think you've said anything to support 136(2)(a).

You saying that you only agreed to this under duress may or may not stand (there's lot's of factors and one major factor would be the decision maker's judgement of what is laid out). As such 136(2)(b) is a gamble which I'd guess you have to consider yourself very lucky to be the winner. However hopefully LP will provide some input (I have zero to less than zero court experience).

136(2)(c )Only applied to limited agreements whilst 136(2)(d) deals with binding agreements.

Yours I think is classed as a transitional agreement as it was before the introduction of the July 2008 amendments. According to the CSA guide (Section 2.7.5) a transitional agreement is treated as a binding agreement in regards to a stay order (I'd suggest checking out all of section 2.7 and all of the legislation that is referred to in the guide).

As such I think that you're limited to trying to prove a) exceptional circumstances and b) hardship to yourself or the child.

If you decide to continue. I'd suggest looking to join the SRL- Resource.
Thanks for the intro MikeT:).

A.N. it is a quandary you are in. I agree with your counsel on the facts you have provided, it will not be enough to establish duress.

The first question I will ask is whether it was known by the other side that your Mother was going to be paying the "extras". From what I have read of your post you would have to act under 236(2)(C), that is if it is a limited agreement.

This being the case, it is going to be a discretionary judgment, which doesn't necessarily take in to account the intention of parliament for the act (CSA) when considering the overall outcome. See for example the words of Kirby J., in Carr v State of Western Australia (2007) where he said that the intention of parliament is "a polite but unacceptable fiction". It would be a tough battle, not unachievable, but if you want to SRL there is a lot of work ahead of you.  

I concur with MikeT if you want to go it as an SRL you should make application to join SRL-R to gain early direction and support, as more info is needed.

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas
That's been the story so far - not much good news!  Technically (as per CSA) the agreement is binding as it terminates on the children's 18th birthday.  However there are a number of judgements relating to similar cases to mine where the magistrate has described this as a "fiction" as binding contracts did not exist at the time I signed mine - so I could not have known the limitations that would subsequently be applied on "terminating" an agreement.
I'm not sure whether the other side knew - I would think she did as the kids knew.  I don't think I discussed it with her directly as I was actually concerned through negotiation that she would seek more if she knew.  In the end that didn't matter as she went to the conciliation conference at court and effectively demanded full CSA amount plus "extras" or no access to kids.
My solicitor did know.  I am increasingly convinced that I will have to argue "exceptional" circumstances and financial hardship as Mike T has suggested.  I did read one judgement where the magistrate took two events to represent exceptional - ie you could possibly predict one, but not two - the two here are illness and GFC.  I'm now thinking I might go back to my original solicitor and see whether she would be prepared to do a deal on costs.
This case is all about your financial settlement with the ex, yours and the ex's current earning capacities and access to resources, and the fact that your circumstances have now changed. Having shared care gives you a good footing as this allows the ex to utilise their earning capacity. At the last hearing did the magistrate order that you and the ex both file form 13's?

AS LP mentioned it will probably be a discretionary decision.

You don't need to fork out for a lawyer. Just be able to show how different your situation is now from settlement.

No, we weren't asked to complete form 13s - what are they?  The trial date was set and we are to submit any further affidavits by late July and an Outline of Case (including chronology, orders sought, documents to be relied on at trial and summary of argument).  I'd be a little concerned if the hearing reverts to the original financial settlement - ie property orders - as I'm not really that keen to get into an argument regarding property.  She kept the family home and is open in admitting that she needs the high child support to pay off the mortgage.  I retained an investment property which, at the time, only had probably $20K equity in it - probably has a little more now.
The additional amounts my Mother gave me (which have reduced my inheritance) were not factored into the property equation - I don't really know why - I think it was because we agreed property really early on - child support and parenting arrangements dragged on.
I don't understand your comment re shared care - could you explain that??  Thanks.   
A form 13 is a complete disclosure of your finances. I am surprised it was not ordered however you can provide this information in your affidavit.

If you have shared care then there is a significant part of the week where your ex is not caring for the children. They are otherwise free to seek employment which gives them an earning capacity.
alexnicholson said
I submitted my application in April - to have the agreement set aside. Iwent to court in May and have a trial date of 6 August. However, the magistrate warned me that I would need to make absolutely certain that I had a sound case or I would have costs awarded against me. I must admit I freaked out a little at this - went to see the Duty Solicitor and felt trapped - go ahead and I mightlose lots of money - go back and the ex wouldprobably chase me too.
From the above can we assume this is in the FMC? The issue of being 'unsuccessful or 'wholly unsuccessful' is always a moot point when it comes to costs arguments.
alexnicholson said
 The Duty Solicitor found me a barrister who thinks I have a case and that it would be unlikely that I would have costs awarded against me - quotes Kildea 2008. However, both the Duty Solicitor and Barrister have suggested that I consider legal support - as the arguments are technically complex.
The 'one' case quoted is not the total of case law.
alexnicholson said
As I've never self-represented I'm naturally cautious and nervous. But my research showsseveral things. Firstly, section 136 of the Act allows for the setting aside of an agreement when the agreement hasbeen established under undue influence or duress. I believe this applies - though I have been told it won't get me over the line because I had legal advice at the time.
The agreement was freely entered into, after several years it is difficult to argue that you were unaware of the consequences. To try and prove 'duress' is at best a very big ask.
alexnicholson said
Secondly,an exceptional change in circumstances is alsoreason to set aside an agreement. The barrister indicated that this was strong in my case -I no longer receive $10,000.
Part of your liabilities were being subsidized by your Mother and you talk about an inheritance, which essentially is implying there will be a balloon payment to you later on. This could mean an accrued CSA debt that could later be discharged. This is a very delicate argument to run.

Points to bear in mind:

This is not an initial property case so the filing of Form 13 will probably be an issue at a future directions hearing.

The other side will likely oppose the re opening of the property agreement, you are also try to tie in the property settlement with CSA liability as if they were a single issue.

The agreement was freely entered into, since you were represented after several years it is will be difficult to argue that you were unaware of the consequences and that it was made under duress.

The 'GFC' argument has been successfully argued against in the Family Court as the results from financial markets can be very cyclical and anyone relying on investment income or share value should be aware of this.

As LP says, a great deal of what happens will be discretionary.


SRL-Resources. the Family Law People on this site (look for the Avatars) www.srl-resources.org  Non gender Professional and peer support for SRLs. Closed site, no public forums, no search engines, no lurkers, guests or the other side and their Lawyer and Friends.
To submit an application to the FMC you must submit an affidavit, an aplication and a financial statement - so that is already done.

I'm not clear on the link between property and child support.  Property was settled and enhanced child support payments were never factored into the property arrangement.  My understanding is my case is about my capacity to fund my child support commitments whilst maintaining a reasonable standard of living.

In the first instance, we were unable to gain an agreement with the other side without offering enhanced child support.  I could not support myself based on the amount she desired.  So my Mother stepped in and offered to help.  The amounts I was given decreased my share of the inheritance, whatever that turns out to be (could be nil now).  She has now withdrawn her help primarily for reasons of ill health.  That is a substantial change of circumstances.  Is it exceptional - well, that's why I'm going to court - to find out.

My only concern in going relates to costs.  I'm not too concerned if I get awarded party-party as they amount to around $6K - worth the risk.  But if I were to be awarded full actual costs, that's another matter.

I approached my previous solicitor - who got me into this mess!!  She'll help for $275/hour!!

Read s117 of the Child Support (assessment) Act and you will understand the relevance of your property settlement to the present situation.
Have you thought about testing the ex out re a new agreement in order to reduce using up the court's time with litigation?  Of course, your reasonable and factual letter to ex would be tendered as evidence should you go to hearing.  
I'm still confused re section 117.  That seems to relate to orders for departure from administrative assessments.  I'm paying just over twice the amount that a CSA assessment would require - hence the difficulty in making ends meet now that I don't receive the money from my Mother.  Or are you suggesting that 117 applies to departure from child support agreements too??  If that is so, then, if I understand it correctly, the court is obliged to give consideration to the impact on all parties in setting aside the agreement.  Confusing - how do sections 136 and 117 interact??

Bigred - interesting idea - would that make awarding costs less likely under s 117 (2A) (f) of the Family Law Act?  I did send a note asking to negotiate about six months ago.  Got a mouthful.  What would I offer, do you think??
    Maybe (2)(iii)(A) applies??
I would offer to meet the liability created by an administrative assessment, as determeined by CSA.  The point is that a court is more likely to look favourably on you if you have been actively trying to free up court time for more worthy cases.  
OK.  My daughter lives with her Mother.  My sons live in a shared arrangement (week about).  Under CSA the amount of child support would drop from just over $1000 fortnight to $610.  Under CSA guideline, I could then claim school fees, uniforms and booklists as prescribed payments for my daughter but not for my sons.  However, the current orders preclude me from claiming any school costs as prescribed.

In the application I have included an order to set aside the current agreement and an order for both parties to pay 50% of all school fees, uniforms, booklists and sports costs.  In reality that's not particularly practical as it requires dialogue between the parties, esp re sports.  So I'm proposing to offer - I'll pay sports costs - all of them.  I'll pay school fees, uniforms and booklists for boys and you pay same for Kirstyn.  Child support as per CSA assessment.  Might start with that and wait for her to reject it.  But, as you say, at least I'm reflecting a willingness to negotiate - and keep the matter out of the court.

I've had to hand over loads of documents re disclosure today - financial statements, tax returns, employment contract, etc.  I'm laying money on the fact that the opposition solicitor is planning to trawl through that lot to provide evidence that I am indeed a wealthy man living in a well-appointed residence, etc.  I have a load of her documents too.  I obviously need to start to assess her spending; and benchmark my spending against something - so I can prove that I'm not extravagant, etc.  Are there some proven tools to do this??
frankappaz - s.117 is a fresh look at the situation and special circumstances must be established to for a court or C$A to depart from the normal administrative assessment process. The most common use of this section is to get the payer to pay more for private school fees.

I've read some of your posts on here and looks like you have a few issues to deal with:
  1. you need to deal with the C$ agreement - s136.
  2. you may then want to go back a few years for a reassessment etc… - s.110
  3. you may want to claim special circumstances - private school fees etc.. s117


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