FAMILY COURT OF AUSTRALIA
| MASTERS & CHEYNE | [2016] FamCAFC 255 |
| FAMILY LAW – APPEAL – CHILD SUPPORT – Binding child support agreement – Setting aside a binding child support agreement – Apprehension of bias and pre-judgment – Distinction between bias or pre-judgment and testing the parties’ propositions – Exceptional circumstances – Hardship – Discussion of setting aside and termination of child support agreements under the Child Support (Assessment) Act 1989 (Cth) – Whether a change in the living arrangements of the child alone can amount to exceptional circumstances – Where the primary judge was in error in finding hardship, where that hardship flowed not from the changed circumstances but from the agreement itself – Where the primary judge erred in her exercise of discretion under s 136(2)(d) of the Child Support (Assessment) Act 1989 (Cth) in setting aside the binding child support agreement – Appeal allowed. FAMILY LAW – APPEAL – COSTS – Where error established – Where the appellant and respondent are self-represented – Where the appellant will receive a windfall as a result of her success in the appeal – No order as to costs. |
| Child Support (Assessment) Act 1989 (Cth) Part 5, ss 4(3), 5, 12, 34B, 44(3), 80C(2), 80CA, 80D, 80E, 80F, 80G, 81, 82, 83, 84, 93, 94, 95, 136(1), 136(2), 136(2)(d), 142 Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Bill 2007, Explanatory Memorandum |
| Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 Balzano & Balzano (2010) FLC 98-048 Bass & Bass [2016] FamCAFC 64 Christian & Donald [2008] FamCAFC 44 Daley & Daley [2009] FMCAfam 398 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 Galea v Galea (1990) 19 NSWLR 263 Hoult v Hoult (2012) 48 Fam LR 507 Hoult & Hoult (2013) FLC 93-546 House v The King (1936) 55 CLR 499 Keane v Keane (2013) 50 Fam LR 120 Lovell v Lovell (1950) 81 CLR 513 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Norbis v Norbis (1986) 161 CLR 513 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Simpson and Hamlin (1984) FLC 91-576 Vakauta v Kelly (1989) 167 CLR 568 Whitford and Whitford (1979) FLC 90-612 |
| APPELLANT: | Ms Masters |
| RESPONDENT: | Mr Cheyne |
| FILE NUMBER: | NCC | 2311 | of | 2009 |
| APPEAL NUMBER: | EA | 69 | of | 2014 |
| DATE DELIVERED: | 2 December 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Murphy, Aldridge & Austin JJ |
| HEARING DATE: | 26 May 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of… |
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- AGLC
- Masters & Cheyne [2016] FamCAFC 255
- Case
- [2016] FamCAFC 255
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the primary judge was correct in finding that the change in living arrangements of the child amounted to exceptional circumstances and whether the primary judge erred in finding that the appellant would suffer hardship as a result of the agreement. The court was also required to consider whether the primary judge exercised her discretion correctly under section 136(2)(d) of the Child Support (Assessment) Act 1989 (Cth) in setting aside the BCSA. The court found that the primary judge was in error in finding that there were exceptional circumstances justifying the setting aside of the BCSA. The court found that the hardship suffered by the appellant flowed from the agreement itself, not from the changed circumstances. The court found that the primary judge erred in her exercise of discretion in setting aside the BCSA.
The court held that the appeal should be allowed and ordered that the order made by Judge Terry on 19 May 2014 be set aside. The court further ordered that the application of Mr Cheyne, filed on 6 March 2013, seeking to set aside the BCSA be dismissed. The court found that there be no order as to costs, as the appellant would receive a windfall as a result of her success in the appeal, and both parties were self-represented.
Orders
Orders of the court
1.
The appeal be allowed.
2.
Order 2 made by Judge Terry on 19 May 2014 be set side.
3.
The Application of Mr Cheyne filed on 6 March 2013, seeking to set aside the Binding Child Support Agreement entered into between him and Ms Masters on 31 July 2008, be dismissed.
4.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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