Keane & Keane

In *Keane & Keane*, the Family Court of Australia considered applications by the father to set aside a binding child support agreement, by his new wife for a declaration of beneficial interest in a jointly owned property, and by his solicitor regarding a charge over property. The father sought to set aside a child support agreement, arguing that exceptional circumstances had arisen since its inception that caused him hardship. The third respondent, the father's new wife, sought a declaration that she held an 80 per cent beneficial interest in a property she owned jointly with the father, asserting a constructive trust over a portion of his legal interest. The father's solicitor sought to rely on a pre-existing charge over the father's property for legal fees incurred after injunctive orders had been made preventing further encumbrances.

The court was required to determine whether the transition of the parties' original agreement into a binding child support agreement under subsequent legislation constituted an "exceptional circumstance" for the purpose of setting aside the agreement. It also had to consider whether the father had satisfied the threshold for hardship and, if so, whether the court should exercise its discretion to set aside the agreement. Regarding the property dispute, the court needed to assess the validity of the third respondent's claim of a constructive trust. Finally, the court had to interpret the meaning of "encumber" in the context of injunctive orders and determine if the father's solicitor could rely on a prior charge for work done after those orders were made, and whether the court had the power to restrain the solicitor from breaching a court order.

The court held that the subsequent legislation transforming the agreement into a binding child support agreement was not, in itself, an exceptional circumstance. While the father would have satisfied the threshold for hardship, the court found no other exceptional circumstances had arisen since the agreement was made that warranted setting it aside. Furthermore, even if exceptional circumstances had been established, the court indicated it would not have exercised its discretion to set aside the binding child support agreement. The third respondent's claim for a declaration of an 80 per cent beneficial interest in the property was rejected. The court also found that the father's solicitor was restrained from relying on the charge for work done after the injunctive orders were made, as this would constitute aiding and abetting a breach of a court order.

The father's application to set aside the child support agreement was dismissed. The third respondent's application for a declaration of beneficial interest in the property was also dismissed. The court declared that the father owed the Child Support Registrar $78,295.82 in child support arrears and penalties, ordering payment within 60 days and placing a charge over the father's interest in the "G property" in favour of the Registrar. The father's solicitor was restrained from relying on the 2009 charge for legal fees incurred after 10 July 2012, except for outstanding fees as at that date.