Masters & Cheyne

The appeal was brought by Ms Masters against a decision of Judge Terry, made on 19 May 2014, to set aside a binding child support agreement (BCSA) between the parties. The agreement was made on 31 July 2008, under the Child Support (Assessment) Act 1989 (Cth). The primary concern of the appeal was the judge’s finding that there were exceptional circumstances to justify setting aside the agreement. This included a finding of hardship flowing from a change in the child's living arrangements. The appeal was heard by the Federal Circuit Court, and the appellant was represented by herself.

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.