Child Support Legislation Amendment (Reform of the Child Support Scheme - New Formula and Other Measures) Act 2006 (146 of 2006)

Schedule 5   Amendments relating to child support agreements and court orders (commencing on 1 July 2008)

Part 1   Main amendments

Division 1   Binding and limited child support agreements

Child Support (Assessment) Act 1989

28   Section 136

Repeal the section, substitute:

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;

(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 party's 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) 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

(d) in the case of a child support agreement - 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).

(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.