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Challenging a transitional binding agreement in court

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Hi All,

My brother is in the process of challenging via the Family Court a decision by the CSA during 2008 to deem his child support agreement as binding. The agreement was never intended to be so, but because the lawyer at the time used a pretty standard template for the agreement that stated that both parties had had independent legal advice (even though they hadn't), the CSA registrar decided that the agreement was binding.  As I said though, it was never intended to be and my brother was never advised it was/would be.

My brother is currently paying almost 2.3 times what he should be notionally as well as all other expenses including school fees (he has three kids so this is a lot of money).

As it stands now, his argument is that the current agreement does not comply with Section 80C, which it doesn't.  His ex wife's lawyer along with the CSA are saying that because it was created prior to the changes to the child support system in 2008 that it doesn't have to comply.  His lawyer and barrister are also arguing that the CSA were only asked to determine how these agreements were to be deemed or treated, not what they actually are but in actual fact the only person/group who can determine whether something is binding or not is the Court itself.  This is an argument with precedent (see Curran vs Roper 2011) but it seems strange to me that more people haven't challenged this situation before.

I just don't understand how it is possible that the CSA can just lock people into binding agreements when they never agreed to them in the first place.  Is anyone else in this position right now and if so, what are you planning on doing about it, if anything?


Goldie why are you posting and not your brother?

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
Binding agreements in the CSA world are particularly BINDING. You cannot amend them without the consent of the other party or without a court order and not easy to do. If you have signed a binding financial agreement form it states you have had independent legal advice. I am not sure what other information we can provide. This post will get likely moved into the Child Support forums at some stage.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
Liberi Primoris: I'm posting for him as he's not all that tech savvy.

Secretary SPCA: He didn't sign a binding financial agreement form - that's the whole problem.  He didn't sign anything to that effect and under the current legislation the agreement wouldn't meet the hurdles required under section 80C (eg. no signed anexure, etc).  It is only because the CSA retrospectively deemed it to be a binding agreement that it is now considered one - does that make sense?
Goldie - You are correct in the fact that your brother did not sign a binding child support agreement at the time at which it was signed. However, under item 74 of the Child Support Legislation Amendment (Reform of the Child Support SchemeNew Formula and Other Measures) Act 2006, the Registrar was required to review all agreements to see if they would meet the requirements of the new scheme. Those requirements were that the agreement contained some of the allowable provisions under section 84(1) of the new Assessment Act. The Registrar was then to determine whether the agreement was either "to be taken to be a binding child support agreement, or to be terminated". Thus if the child support agency continued the agreement, it treated it as a binding agreement, with the notable exception of allowing the parents to agree to terminate the agreement without subsequent legal advice.

The very interesting thing, is that certain Federal Magistrates are under the impression that this is a bit of stretch. The most recent case of this is Curran and Roper (2011) FMCAfam 859, in which Turner FM has ordered that an agreement signed by the parents in 2005 is not a binding child support agreement as the conditions of section 80C were not met. They are, as far as I am aware, deciding now upon whether or not the agreement is a limited agreement or an agreement that is not covered by the Act.

Another interesting read is Daley and Daley (2009) FMCAFAM 398, in which FM Brown commented on the fact that neither parent receive legal advice.

FM Brown said
96 - The provision of such advice would now be an essential and indispensable pre-requisite for the enforcement of any such binding child support agreement made after 1 July 2008. To a certain extent, it is an administrative fiction that the agreement between the parties in this case is regarded by the Agency as being a binding child support agreement.
  In most cases (Daley and Daley, Cogswell & Calvery, Balzano & Balzano, Leonard & Leonard), the court has addressed whether or not the agreement is binding or limited as a stepping stone to determine whether the agreement should be set aside under section 136 of the assessment act. There are a few, Cogswell & Calvery for example, where the court has still deemed the agreement to be binding - even though there is a lack of legal advice - based on the terms of the agreement itself.

Altobelli FM said
42 - I find that the child support agreement in question is deemed by the legislation to be a binding child support agreement because it was expressed to conclude when each of the children referred to therein attains the age of 18 and makes no provision for any other terminating event. I wish to emphasise that, technically, the child support agreement in question does not meet the requirements of s.80C(2) of the Act because of the absence of independent legal advice. Nonetheless, it is deemed to be a binding child support agreement because of the transitional provisions in the Act.
If it can be argued that your brother's agreement is limited and not binding, the court will still need to be satisfied that the requirements of section 136 have been met for the agreement to be overturned.
Thanks Cheese.  Curran vs Roper is interesting to me as one of the key arguments is that the CSA can only determine how an agreement should be treated, not what it actually is. But that aside,  how is it possible that you need so much legal advice and all the checks and balances under the new system to enter into a binding agreement now but that for anyone unlucky enough to have created an agreement prior to 2008, they can just have one 'applied' to them retrospectively, regardless of what actually took place?  I just don't understand how that is allowed to happen….it's as FM Brown says, the binding nature of the agreement is actually just fiction.  And I'm pretty shocked by the repercussions of that for anyone who now finds themselves stuck in this situation.  
I think that all the old protections of the pre July 08 agreement are still there. The parents can still opt to agree to end a transitional agreement without legal advice, so in effect there is no additional burden from the new legislation placed on them.

You could argue from the other side and say that its grossly unfair to have an agreement now be subject to the same rules as a limited agreement, when the parents did not have that in their minds prior to 1 July 08.
Cheese, you are right that it would be grossly unfair on the other parent IF that was what was agreed in the first place.  It's different here though as when my brother first signed that agreement, it was not his intention that it be binding - this is the whole point. There was no such thing as a binding agreement prior to 2008 anyway so how could he have agreed to one? Also, before 2008 it was much easier to have these agreements renegotiated so in that way I don't think the protections that you refer to are necessarily there for him.  And while you are right that these agreements can now be mutually terminated, it is unlikely that the parent receiving the child support is going to admit they are being overpaid and opt to overturn the agreement for a fairer solution that means they get less.  I think there are some major flaws in this system that need to be addressed.  
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