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Child support – s90UD financial agreement not a binding child support agreement

In Piper & Talbot & Anor [2021] FCCA 511 (18 March 2021) Judge Bender heard a father’s appeal from a decision of the Administrative Appeals Tribunal as to whether a financial agreement made pursuant to s90UD of the Act was also a child support agreement.

The parties made the financial agreement in April 2015 following the breakdown of their relationship, which the mother registered with the Child Support Registrar in May 2018.

The court said (from [53]):

“…s84(5) of the [Child Support] Assessment Act states that the same document can be both a Child Support Agreement and a parenting plan, a Child Support Agreement and a Maintenance Agreement or Financial Agreement under the Family Law Act or a Child Support Agreement and a Part VIII AB Financial Agreement. Given my finding that the principles of law and equity are applicable to Binding Child Support Agreements, it will be necessary for the parties to have intended that the component of their joint document which relates to child support be a Binding Child Support Agreement… (…)

[165] … [I]t was incumbent upon the Tribunal … to look at the agreement as a whole, including the recitals, to satisfy itself that the legal advice given not only related to … Part VIII AB of the Family Law Act, but also related to … Part 6 of the Assessment Act as the parties’ rights and the advantages and disadvantages of the agreement are clearly very different depending upon which agreement the advice is being given for.

[166] Whilst there is no statutory requirement … that a binding child support agreement specifically state that it is made pursuant to Part 6 of the Assessment Act … the Tribunal had an obligation … to read the agreement as a whole to determine if on its face the Tribunal could be satisfied the advice given was the effects of the document as both a financial agreement under the Family Law Act and a binding child support agreement under the Assessment Act.”

The court upheld all grounds of appeal and made a declaration that the s90UD financial agreement was not a binding child support agreement.

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are Accredited Specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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