Setting Aside a Binding Child Support Agreement

A Binding Child Support Agreement can be set aside only by way of an application to the Court. You must be aware that the Court will set aside a binding child support agreement only in very limited circumstances including that there are exceptional circumstances and hardship.

Applications to set aside a Binding Child Support Agreement are most commonly brought pursuant to s.136(2)(d) of the Assessment Act; that is, the party applying to set the agreement aside asserts that because of exceptional circumstances which have arisen since the agreement was made, the applicant or the child(ren) will suffer hardship if the agreement is not set aside.

The bar for establishing exceptional circumstances is very high. It is accepted that for circumstances to be exceptional, they must be unusual, out of the ordinary or special and that they ought not to have been expected to occur, noting that the Court will assess each purported exception circumstance or set of circumstances on a case by case basis. The Court must also be satisfied that the applicant would suffer hardship if the binding child support agreement were not set aside.