Craig is an Accredited Specialist in Family Law, a Partner at Small Myers Hughes Lawyers and Co-editor of ‘The Family Law Book’ - a publication for family lawyers across Australia. Specialist Legal Advice Our team of Specialists has provided successful outcomes to the medical industry for over 25 years. Tax, asset protection, commercial advice and relationship advice pertaining to: • Medical practice startups • Mergers • Admission of practice partners • Capital Gains Tax & revenue advice on practice sales • Personal asset protection • Succession • Estate Planning • Family & Relationship Law • Commercialisation of medical opportunities Leading David Hughes Col Myers & Jodie Mills Michael Small & Craig Nicol Family & Divorce Law Firm 2014 - 2016 Leading Tax Law Firm 2015 - 2016 Contact us today to find out how we can assist you 07 5552 6666 | info@smh.net.au | www.smh.net.au Despite seeking relief from the court, the Full Court of the Family Court decided that Mr Cheyne remained liable to pay the mother – or more accurately, that there were no grounds to set the agreement aside. Let’s look at why. Firstly, the three judges who heard the case had different views as to when obligations pursuant to a child support agreement come to an end. One said that such an obligation could only end in the manner described in the legislation – which is one of three ways: i) per the terms of the agreement itself; ii) a further agreement; or iii) the court setting the agreement aside where there is “exceptional circumstances” and “hardship”. Another judge said that there was a fourth option, being when the default formula ends. This includes the death of parent, the child turning 18, or the child becoming a member of a couple. The third judge said that this particular issue did not need to be decided. Secondly, all members of the Full Court held that there was no evidence that the changed circumstances created hardship for Mr Cheyne, particularly when his superior financial position was considered. Passages of the judgment stress that binding agreements are necessarily difficult to set aside. There is no requirement for an agreement to provide for a “fair deal” or that the agreed obligations reflect the default formula in any way. Further, parents entering into binding agreements can be assumed to have elected for “certainty” over “flexibility”, such that a parent wishing to rely upon a later change of circumstances can expect firm resistance, if they have not explicitly made provision for their agreement to end in particular circumstances. Mr Cheyne’s tale is one with lessons for all parents who receive or pay child support, or are considering a child support agreement. Where the vicissitudes of life itself make changes foreseeable – be it care arrangements; work and unemployment; salary; children’s expenses; or a parent’s financial position generally – a parent choosing to proceed with a binding agreement must carefully consider when they want an agreement to end – in effect, trading certainty for flexibility. As highlighted in Masters & Cheyne, the benefits of locking in an arrangement are accompanied by some potentially onerous obligations if circumstances change. Ideally, parents should obtain legal advice around their child support options and any proposed agreement, as one size does not fit all. The second point to take from the case is that the law as to child support agreements is still developing. Specialist legal advice can assist parents keep up with the latest trends.
Pindara Private Hospital Magazine - Issue Ten
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