Cheyne and Masters and Anor (SSAT Appeal)

This matter concerned an appeal to the Social Security Appeals Tribunal (SSAT) regarding a binding child support agreement entered into by the parties in 2008. The agreement stipulated that the father would pay child support to the mother. At the time of its execution, the child resided with the mother for 64% of the time. However, in April 2012, the child commenced living with the father, reducing the mother's care time to 16%. The Child Support Agency had determined that the agreement ceased to be enforceable due to this change in care arrangements, a decision the mother appealed to the SSAT. The SSAT ultimately ruled that the agreement remained valid and enforceable despite the altered care arrangements.

The court was required to determine whether the SSAT erred in law by finding the binding child support agreement remained valid and enforceable notwithstanding the significant change in the child's care arrangements. Further, the court considered an application to set aside the agreement pursuant to s.136(2)(d) of the Child Support (Assessment) Act, specifically whether the change in care arrangements constituted exceptional circumstances that would result in hardship for the father if the agreement were not set aside. The court also had to consider the relevance of an amendment to s.12 of the Act, which had altered the definition of child support terminating events, to the determination of exceptional circumstances.

The court found that the SSAT had erred in law by upholding the validity of the agreement. While acknowledging the amendment to s.12 of the Act, the court determined that the significant shift in the child's residence, from primarily with the mother to primarily with the father, constituted exceptional circumstances. The court reasoned that the original intent of the agreement was predicated on the mother having the majority of care, and the reversal of this arrangement created a situation of hardship for the father, particularly given his status as a high-income earner. Consequently, the court exercised its discretion under s.136(2)(d) to set aside the binding child support agreement.

The applicant's appeal against the SSAT decision was dismissed. However, pursuant to s.136(2) of the Child Support (Assessment) Act, the binding child support agreement dated 31 July 2008 was set aside, effective from 23 April 2012. All other outstanding applications were dismissed, subject to any party's right to seek costs.