Would dad still have to pay child support to mum after his son moved in with him full-time? Which case won?
Separated couple enters into binding child support agreement
The couple first started living together in 1994, were married in 1995 and had four children together.
They separated in 2006 and in February 2008, they entered parenting orders by consent, which provided that their youngest child would live with his mother and spend time with his father for five nights each fortnight during the school term and for half of the school holidays.
In July 2008, the parties entered into a binding child support agreement (BCSA) which provided that the father pay child support to the mother for the youngest child in the amount of $220 each week (indexed to inflation) until the child’s 18th birthday.
A BCSA is a binding agreement that can only be changed or set aside by a court if exceptional circumstances have arisen.
Dad stops paying child support after youngest child moves in with him
In April 2012, the youngest child, then aged 15 years and 4 months, started living with his father six nights each week and staying with the mother one night each week. This was mostly because the mother’s relationship with him had become strained. The father then stopped making child support payments to the mother.
At the end of September 2012, the mother relocated from regional NSW to Melbourne. At that time, the mother proposed that she return to regional NSW for two-week blocks and that during that time the son live with her. However, this never occurred.
Dad seeks to set aside binding child support agreement
On 6 March 2013, the father commenced proceedings seeking to set aside the BCSA. It was up to the court to determine whether the changes in the youngest child’s living arrangements since the BCSA was entered into amounted to exceptional circumstances.