Court found a de facto relationship to have ended when one of the parties left the property, and not earlier as a separation under the one roof 

In A & G [2009] FCWA 110 (25 August 2009) at paras 1-57 Thackray CJ found a de facto relationship to have ended when one of the parties left the property, and not earlier as a separation under the one roof. 



The Court concluded at paras 50-56:

  • “For the reasons set out above, I have found that [Mrs A] continued to reside in the home in [the country] with [Mr G] until early in September 2005. This conclusion does not, however, resolve the jurisdictional question which is directed to determining the date on which the de facto marriage relationship ‘ended’.

  • In determining when the de facto relationship ended, I must have regard to the provisions of s 13A of the Interpretation Act 1984, which sets out the following factors to be taken into account in assessing whether there is a de facto relationship: 

  • the length of the relationship between them; 

  • whether the two persons have resided together; 

  • the nature and extent of common residence; 

  • whether there is, or has been, a sexual relationship between them; 

  • the degree of financial dependence or independence, and any arrangements for financial support, between them; 

  • the ownership, use and acquisition of their property (including property they own individually); 

  • the degree of mutual commitment by them to a shared life; 

  • whether they care for and support children; 

  • the reputation, and public aspects, of the relationship between them. 

I agree, with respect, with the observations of Mahoney J in Hibberson v George (1989) DFC 95-064, where his Honour said (at p 75,766): 


‘There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this.’ 


These comments were made in the context of a case where one of the parties had, in fact, left the home but claimed that the relationship was still ongoing. In the present case, part of the cross-examination of [Mrs A] was designed to establish that although the parties may have continued to reside in the same residence, the relationship had ‘ended’ prior to the date of final physical separation. 


In answering questions put to her, [Mrs A] acknowledged that during the last month or so of cohabitation, the parties were negotiating the terms on which she would leave the property. She went so far as concede that she regarded the relationship as having ‘ended’ prior to her moving out of the property. This is not, however, in any way determinative of the matter. The date on which a de facto marriage relationship has ‘ended’ is a matter of law and not a matter for a party themselves to determine. I am quite satisfied that in acknowledging that she regarded the relationship as having ‘ended’ in August 2005, [Mrs A] was using the word in the colloquial sense in that she was completely disillusioned with the relationship and had determined that she would leave the home and live elsewhere. 


I am not, however, satisfied that the relationship actually ‘ended’ until [Mrs A] left the property. She and [Mr G] continued to live under the same roof. They continued to share a bed (although [Mrs A] said they had not ‘touched each other’ for the last year). They continued to operate a joint account. [Mr G] continued to control the joint account and pay to [Mrs A] the amount that he considered was appropriate after meeting joint expenses. The fact that the relationship was exceedingly unhappy and was clearly going to come to an end does not mean that it had ‘ended’ within the meaning of the legislation. 


For these reasons I am satisfied that the parties not only separated in September 2005 but that the relationship ended in that month. Hence [Mrs A]’s application for property settlement was filed within the time permitted by the legislation. Leave was not required to commence proceedings.”

Contempt of court – Applicable law and procedure  

In A Bank & Coleiro and Anor [2011] FamCAFC 157 (2 August 2011) the husband was questioned (through an interpreter) by Harman FM as to the disappearance of $200,000 withdrawn from bank accounts by the husband after the wife filed an application for property orders. She later sought an injunction against his disposing of the proceeds of sale of their home but there was no evidence that that application had been served before the money disappeared. Upon the husband insisting that he had no money Harman FM charged him with and convicted him of contempt of court under s 112AP of the Family Law Act and sentenced him to imprisonment. An order was made that the husband be remanded in custody, to be released upon his depositing at least $120,000 with the court, however the order was suspended and not executed. It was also ordered that the bank be joined as a party.

The Full Court (Bryant CJ, Finn and Strickland JJ) allowed the bank’s appeal against Harman FM’s joinder of the bank as a party. Bryant CJ at para 3 of her Honour’s judgment said:

“Whilst there is no appeal by the husband in relation to the Federal Magistrate’s use of the contempt power, the manner in which his Honour dealt with the husband for contempt in the face of the Court requires some comment.”

Her Honour set out the statutory provisions as to the law governing and the procedure for charging a person with contempt and the hearing of the charge, saying at paras 13-15:

“In dealing with contempt under s 112AP which is not for breach of an order two important issues need to be considered. The first is that where there is no breach of an order that would involve civil contempt, the contempt for which the charge is made is criminal contempt. All proceedings for contempt whether civil or criminal must be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525; Tate & Tate (2002) FLC 93-107.

The contempt power should only be used sparingly and in the most extreme cases and the charge of contempt must specify the nature of the contempt: Lewis v Judge Ogden (1984) 153 CLR 682.

The contempt must be wilful (that is distinct from incidental) but not necessarily contumacious: Bande & Cade [2011] FamCAFC 93.”

Bryant CJ continued at paras 19-20:

“In light of these well established statements of principle and the Rules of the Federal Magistrates Court [FMCR 19.01] a fair hearing of the charge of contempt in the face of the Court requires the following steps to be taken:

  • First set out the charge which can be done orally or in writing. However it is essential that the alleged contemnor understands the charge that is being laid.
  • Consider whether it is necessary to take the exceptional step of proceeding to hear the charge or whether the charge should then be adjourned so it can be heard before another judicial officer.
  • To afford the alleged contemnor the opportunity to consider the charge and to adjourn for that purpose if necessary.
  • To give the alleged contemnor the opportunity to state whether he or she pleads guilty or not guilty to the charge.
  • To determine whether the charge requires the alleged contemnor to be held in custody and to hear submissions on the issue.
  • In the event the alleged contemnor pleads not guilty to give him/her the opportunity to present evidence and make submissions relevant to the defence and determination of the charge.
  • Having heard the defence to determine the charge beyond reasonable doubt and if established convict the alleged contemnor.
  • To make an order for punishment if convicted, or discharge if not.
  • If sentencing, to have regard to relevant sentencing principles.
  • To give reasons for the decision to convict and sentence.

It is apparent from the transcript that his Honour failed to comply in almost all respects with the Federal Magistrates Court Rules and with the well established authorities in relation to the manner in which contempt in the face of the Court is to be conducted.”

Same sex couple, biological mothers to two children – Weight of child’s views – “Fifty/fifty [equal time] will stop them fighting” – Presumption of equal shared parental responsibility rebutted due to parties’ conflict –  Court not required to consider an order for equal time

In Aaron [2011] FMCAfam 80 (7 February 2011) children of 5 and 7 were conceived by the artificial insemination of each mother using donor sperm. The children were treated as the children of the relationship, which had lasted nine years. They had known each other as sisters although biologically they were cousins. Since separation “the parents ha[d] been engaged in a high conflict low communication relationship which … resulted in the … court proceedings”. One was seeking equal time with the children, the other an order that the children live with her and spend four nights a fortnight with the other. The ICL recommended substantial time with each party.

The older child’s remarks to the report writer that “fifty/fifty will stop them fighting” were considered by Turner FM in the context of both parties’ description of the child as “a child who wants to please, saying things that she thinks might make the other person happy”. Turner FM at para 226 added:

“As to the weight I give these views, I acknowledge and accept that the children have an equally strong bond with both parents.”

Turner FM found that it would not be in the children’s best interests for the parties to share parental responsibility, saying this at paras 162-169:

“The bickering, the involvement of the children, and their exposure to conflict, and the problems with decision making due to the applicant’s perception as to the impact on her rather than the children must cease.

As nothing positive was put forward as to possible changes in the future as to communication and level of conflict then the issue must be resolved by way of court order.

I find that the presumption is rebutted in accordance with section 61DA(4) [of the Family Law Act] as it would not be in the best interests of the children for the parties to have equal shared parental responsibility.

I further find that the parties should not share any parental responsibility pursuant to section 64B(2) as it would not be in the children’s best interests.

Further the applicant was accepting of the respondent’s ability to make appropriate decisions for the children and in reality the respondent has made the long term decisions successfully since May 2009.

I therefore order for the respondent to have sole parental responsibility.

I have however taken into account the importance of Catholicism religion to the applicant and this is reflected in the court orders.

As I have made the finding that the presumption of equal shared parental responsibility is rebutted, I am not required to consider an order for equal time or significant or substantial time pursuant to section 65DAA.”

Turner FM then (para 173) applied the Full Court’s ruling in Goode [2006] FamCA 1346 that an order for substantial and significant time can be made where the presumption of equal shared parental responsibility has been rebutted. After assessing the s 60CC factors, Turner FM made an order for the children to spend three nights a fortnight with the applicant, with school holiday and other special time.

De facto relationship of less than 12 months – One child 

In Abell & Vogel [2013] FamCA 274 Johnston J considered a de facto relationship of less than 12 months, the parties having one child together after buying a home as tenants in common (in equal shares). The de facto wife contributed about $271,000 to the $935,000 purchase price, the parties borrowing the balance.

The Court found that the de facto wife “paid more than twice the amount of mortgage repayments the applicant paid”; that the de facto husband paid $9,000 to a joint offset account (to which the de facto wife paid $42,000); that the de facto husband had prepared the majority of meals and done some household chores. The de facto husband deposed that he designed “the interior of the lounge room and the child’s room” and “made significant renovations to the renovation of the property”. The de facto wife had “the major care of the child”.

The Court was satisfied there was a “significant disparity of contributions in favour of” the de facto wife, assessing contributions under s 90SM(4) as 80:20 in her favour. 

The Court then awarded the de facto wife a further 8% adjustment for s 90SF(3) factors due to her primary care of the parties’ child, while noting her superior financial position.

Court’s approach where a teenage child was refusing to see or speak to a parent  

In Abernethy [2009] FMCAfam 426 (25 May 2009) Halligan FM made no order in relation to a teenage child of 14 years was refusing to see or speak to the father except an order that the mother encourage the child to see the father. An order was made for the child’s 9 year old sibling to spend time with the father.

Abandoned children refusing time with father – Alienation by wife alleged  

In Abood & Khouri [2010] FMCAfam 900 (9 December 2010) three young children had not spent any time with their father for four years and were currently refusing to spend any time with him, including supervised time. The husband alleged that the wife (who alleged serious violence on his part and that the children were at risk if they were to see him) had alienated the children from him. Bender FM found that such a risk did not exist but at paras 198-200 said this:

“ … because of his abandonment of the family some four years ago and his failure to provide any financial assistance to them ever since, the wife is of the view that the husband has abrogated all his responsibilities as a father and that he can bring nothing positive to these children’s lives.

The husband offers no credible explanation as to his failure to properly support his children over the last four years. I accept however that he wishes to have an ongoing and proper relationship with his children. Efforts to date to try and remedy the children’s relationship with their father have been to no avail and all efforts for supervised time have been unsuccessful, with the children refusing to spend any time with their father and becoming quite distressed when asked to do so.”

Bender FM concluded at paras 203-205:

“I am satisfied however that it is in these children’s best interests that they be given every opportunity to have an ongoing relationship with their father. I am also satisfied that [the children] should spend supervised time with their father. Because of the parties’ unsuccessful attempts to introduce supervised time between the husband and [the children] to date, the commencement of such time will require therapeutic counselling to have started and for there to be an assessment by the therapist that [the children] are better able to embrace seeing their father in that context.

An order in these terms is not an abrogation of the decision making role of the court to the family therapist. I have made a decision that it is in [the children’s] best interests to spend supervised time with their father with the assistance of intensive family therapy. The timing of the commencement of the supervised time is subject to the progress being made in that therapy and as such it is appropriate that the supervised time commence when the therapist working with the family is of the view that [the children] will spend that time with their father.

To that end, I intend to make orders that make provision for the parties and the children to engage in intensive therapeutic intervention, after which the children are to commence spending time with their father on a supervised basis once the therapeutic counsellor deems the children are ready for that step.”

Terminology – “Contact” may be used interchangeably with “spend time with” according to context – Relocation from northern Tasmania to Melbourne allowed

In Abrahams & Rathbone [2013] FMCAfam 1 (9 January 2013) Roberts FM allowed the mother to relocate with a child born in 2008 from northern Tasmania to Melbourne where her new partner worked. The parties were described as “two very competent and committed parents” (para 35). The mother offered significant contact between father and child in Tasmania, the mother offering to pay 75 per cent of the child’s return air fares (an order was made to that effect).

Roberts FM made reference to terminology as to the use of the term “contact” in a parenting case, saying at paras 32-34:

“In a 2008 decision, FM Walters (as he then was) said:

‘Although the law now refers to a child “spending time” with a person (usually a parent) with whom the child does not live, I shall use – from time to time in these Reasons – the obsolete term “contact”. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.’

In both Carpenter & Lunn [[2008] FamCAFC 128] and Chappell & Chappell [[2008] FamCAFC 143] slightly differently constituted Full Courts of the Family Court had expressed similar views when they said:

‘ … The new legislation replaced the legal concept previously known as “contact” with the concept of a child “spending time” with someone. The legislation, however, does not prohibit the use of the noun “contact” in its everyday sense. In these reasons, we propose to use “contact” interchangeably with expressions such as “spend time with”. In doing so, we have not ignored the legislative intent, but rather have avoided the linguistic gymnastics that would otherwise have been necessary.’

In my view, those comments make grammatical and legal common sense, so from time to time in these Reasons I will use the word ‘contact’ interchangeably with terms such as ‘spend time with’ and ‘communicate with’.”

Roberts FM ultimately concluded (paras 95-100) as to the mother’s case for relocation:

“When she wrote the family report, Ms B recommended that the child ‘live with her mother in northern Tasmania’. However, with the passage of time between the writing of that report and with the provision of more information to her in the witness box, Ms B appeared to be more equivocal. When Mr Turnbull put it to her that, given what she had read, heard and had been put to her, relocation could be an outcome that is in the child’s best interests, she responded ‘It could be’. Immediately before that, she had observed that the outcome in relation to relocation is not obvious and that the matter is finely balanced.

In cases that are finely balanced, it may be just one criterion that becomes decisive in determining the outcome. In Taylor & Barker [[2007] FamCA 1246] the decisive criterion was the happiness and contentment of the child’s primary carer. The majority said this at paragraph 113:

‘It will be seen from the passages from his Honour’s judgment which we have set out throughout these reasons, that this was a difficult and finely balanced decision. In such a case one factor will usually become decisive. In this case his Honour determined that that factor was the mother’s happiness and contentment. In such a case where, as his Honour noted, the mother wanted to marry and be with the father of her second child, it could not, in our view, be said that his Honour was wrong in elevating this factor together with the impact on the mother and on the subject child of her not being permitted to relocate to join the man whom she wanted to marry, to be the decisive factor or factors in this case.’

In this case, the situation is very similar. The mother wishes to live with the man she loves in Melbourne and I conclude that she will be very unhappy if she is not allowed to do so. In that regard, I do not accept the submission made by the father’s counsel ‘that if the relocation were not permitted the mother would be inconvenienced’. The effect on her will be significantly greater than mere inconvenience. That much is clear from her evidence that she would not cope but would ‘do her best to work around it’.

The parties are in agreement that the child should continue to live predominantly with the mother, so any decision that makes the mother very unhappy about where she lives is likely to have a negative impact upon the child. This is a logical corollary to the evidence of Ms B about the mother’s happiness as set out at paragraph 77 above.

In Morgan & Miles [[2007] FamCA 1230], Boland J also said this:

‘This leads me to conclude that it is not distance per se which should be the determinative criteria (sic). In many cases what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered.’

When I weigh up the relevant criteria in this matter, I conclude that it is in the child’s best interests to permit her to live in Melbourne with her mother on the basis that her meaningful relationship with her father is maintained by regular and frequent contact.” 

Property – Interim costs application dismissed – No evidence of available source of funding or cost of valuations – Inadequacy of pool 

In Abrams [2010] FMCAfam 560 (3 August 2010) Willis FM dismissed an application for a Hogan order (also known as a Barro order, or an order for interim costs or litigation funding) where the wife (who had received significant assets in earlier property distributions) was unable to point to an available source of the proposed funding, the remaining asset pool being insufficient to enable the proposed payment of $80,000. There was also no evidence as to the cost of valuations.

Trustee may be required under Part VIIIAA FLA to bring forward vesting date of trust fund for purposes of valuing and distributing entitlements to share in the fund that were fixed and irrevocable (due to the unusual absence of an appointor)

In AC and Ors & VC and Anor [2013] FamCAFC 60 (11 April 2013) the husband, the wife and their three adult children were specified beneficiaries of a discretionary trust that was established by a deed of settlement dated June 1985, with a vesting date of June 2064. The guardian and appointor of the trust had been the husband until 1997 when he resigned from those positions and did not appoint another guardian or appointor. The trustee was the husband’s father until August 1985 when by deed of appointment the husband substituted the corporate trustee.

After the husband’s resignation as director of the corporate trustee his father held all shares in the corporate trustee until his death in 2008 whereupon those shares passed to the husband’s mother. She and LB (an executor of the estate of the husband’s father) were also directors of the corporate trustee. Under the trust deed the general beneficiaries included the husband’s mother, the husband’s sister (RE) and G Investments Pty Ltd of which (since the husband’s resignation as director and the death of the husband’ father) the husband’s mother was the sole director and shareholder.

The trial judge, Crisford J of the Family Court of Western Australia, made an unchallenged finding that the specified beneficiaries had a “fixed and irrevocable entitlement to a share of capital upon a vesting of the trust” due to the absence of an appointor or guardian for the trust (paras 30 and 81) and that the trust entitlement of each spouse was “property” for the purpose of s 79 FLA (para 82). Upon the application of the wife, it was ordered that the vesting date of the trust be brought forward and the trust fund distributed between the five specified beneficiaries.

It was ordered that $338,000 be paid to the husband’s mother upon the vesting of the trust to satisfy her future entitlements under the trust (if the trust were not to vest). The husband’s mother (in her personal capacity and as director of the corporate trustee and as executor of the estate of the husband’s father) and LB (as director of the corporate trustee and executor of the estate) appealed to the Full Court (Bryant CJ, Finn and Strickland JJ).

The trial judge found (at [28]) that all properties forming part of the trust assets were acquired before the husband’s resignation as appointor and guardian and that the funds used to buy the properties originated from the husband’s parents. Distributions had been made to the spouses, their children, the husband’s parents, G Investments Pty Ltd and (after the wife sought a vesting of the trust in 2010) to RE, RE’s daughter (SW) and SW as well.

The Full Court said (from [14]):

“ … the ‘core of the appeal’ was described in the written submissions of the appellants as being contained in the following propositions:

•          Part VIIIAA of the Act can only be used to implement orders relating to what has properly been found to be the property of the parties to the marriage; and

•          Part VIIIAA would be beyond constitutional power if it could be used to alter the substantive property rights of third parties (as was asserted to have been done by the trial judge in this case).”

The Full Court proceeded to set out the principal provisions of ss 90AA (the object of Part VIIIAA), 90AC (this Part overrides other laws, trust deeds etc), 90AE (court may make an order under s 79 binding a third party) and 90AF (court may make an order or injunction under s 114 binding a third party).

The Court continued (from [17]):

“As earlier indicated, the orders which are the subject of this appeal were apparently sought, and were certainly made, pursuant to s 90AF. Why s 90AF rather than s 90AE was relied upon is not entirely clear to us, but presumably the orders in question were seen to be in the nature of mandatory injunctions. However, as no issue was raised before us regarding the use of s 90AF, it is unnecessary for us to comment further. We observe in passing that under s 90AF(3)(d) the court had to be satisfied that it was in all the circumstances ‘proper’ to make the relevant orders, whereas had the orders been made under s 90AE the court would have been required under s 90AE(3)(d) to be satisfied that in all the circumstances, it was ‘just and equitable’ to make the orders. In her conclusion at [252] in her reasons for judgment in relation to the orders, her Honour appears to use the ‘just and equitable’ criterion.

[18] In relation to both s 90AE(2)(b) and s 90AF(2)(b) we take the opportunity to point out the uncertainty of meaning of the words ‘alters the rights, liabilities or property interests of a third party in relation to the marriage’. It is the last five words which cause the difficulty. The Full Court in B Pty Ltd v K (2008) FLC 90-380 expressed a similar view. We note that O’Ryan J offered this explanation in Hunt v Hunt (2007) 36 Fam LR 64 at 113:

‘When s 90AE(2) is read in conjunction with s 90AE(3), s 79, and Pt VIIIAA generally, it is clear that what is contemplated is not some arbitrary invasion of the rights of a third party but an alteration of those rights where they are sufficiently connected to the division of the property between parties to a marriage.’”

After discussing the trial judge’s findings, the grounds of appeal and the submissions of counsel, the Full Court said at para 85:

“Whatever may be the outer limits of the powers in Part VIIIAA, we are satisfied the Part can be used to require a trustee (including a third party trustee) to bring forward the vesting date of a trust fund for what can be termed, the ‘ancillary’ purposes of valuing an irrevocable entitlement to ultimately share in the trust fund, and of distributing that share to the party entitled, and that these powers can be exercised even at the expense of third party interests, provided that the requirements in ss 90AE(3) and (4) and ss 90AF(3) and (4) are met, and the order, if made under s 79, is ‘just and equitable’, or if made under s 114, is ‘proper’.”

The Court continued at [87]:

“However … the legislative safeguards for third parties, who will be subject to or affected by the exercise of the Part VIIIAA powers, must be observed in order that the exercise of power be valid. Therefore, in purporting to exercise those powers in the circumstances of this case, it was necessary for her Honour to be satisfied concerning the conditions of reasonable necessity or adaption, and of procedural fairness contained in s 90AF(3)(a) and (c) respectively, and also that the proposed orders were proper under s 114(1). Her Honour did conclude that she was satisfied in relation to all these matters, but in our view, she erred in reaching that conclusion for the reasons which follow.”

The Full Court held (paras 88-90) that the husband’s mother (who “was unaware that there was to be an order for her entitlement in the trust to be ended with a payment of $338,000 to her”) had not been accorded procedural fairness. As to whether the proposed orders were “reasonably necessary” to effect the proposed property settlement, the Court said (at [98]):

“ … it would have been of assistance had she provided more in-depth analysis of how the value of all the parties’ assets was to be distributed between them, before apparently determining that her proposed orders were reasonably necessary to effect the proposed property division. ( … ) … it is difficult to see that orders could be ‘reasonably appropriate and adapted to effect a division of property’ if the position of any third party affected by the proposed orders had not been closely considered (after that party had been accorded procedural fairness).”

The Full Court concluded (from [100]):

“The appeal must succeed on the basis that the husband’s mother, as the controller of the trust and also as a general beneficiary, was not accorded the required procedural fairness, and that consequently, the orders could not be said to be ‘proper’. The orders appealed must therefore be set aside.

[101] It must be emphasised that this was a most unusual case … [due to] the absence of an appointor or guardian of the trust [and that] … the five specified beneficiaries … had fixed and irrevocable entitlements to share in the fund on its vesting [; and that] … the adult children … chose to take no part in the proceedings and … to abide by the orders of the Court. Thus, the remedy of an early vesting of the trust was clearly an option open to the trial judge, subject to the statutory safeguards for affected third parties being met. However, those safeguards were not met, at least in relation to the husband’s mother, who was the controller of the trust and a general beneficiary who had received reasonably substantial distributions over the years.” 

Child support agreements pre-1/7/08 – Agreement made in 2004 held to be “binding” but set aside due to failure of payer’s business

In Ackers & Ducley [2010] FMCAfam 809 (30 July 2010) Monahan FM heard a husband’s application that a child support agreement made in 2004 (but not registered with the Child Support Agency until 2007, the husband being declared bankrupt in 2005) be set aside and his liability assessed administratively. 

Monahan FM at paras 33-47 discussed the law relating to the variation of agreements as a result of the reform of the Child Support (Assessment) Act on 1 July 2008, saying at para 43:

“…the transitional provisions [enacted as part of that reform] required the CSA to review all child support agreements existing before 1 July 2008 and advise the…parties whether the agreement was determined by the CSA to be a ‘binding’ child support agreement or an agreement that would be ‘terminated’. Unless there was a successful objection to the CSA’s decision, any agreement not terminated after 30 June 2008 would be a ‘binding’ agreement for the purpose of the legislation.”

Monahan FM then compared the tests for setting aside “limited” agreements (“significant change such that it would be unjust not to”) and “binding” agreements (“hardship” suffered by applicant or children from “exceptional circumstances” since the agreement) under ss 136(2)(c)(i) and 136(2)(d) of the Child Support (Assessment) Act respectively, saying this at para 96 as to the status of the agreement in question:

“While there is nothing on the face of the Agreement to indicate whether it is ‘binding’ or ‘limited’ for the purposes of the Assessment Act, I am satisfied that the agreement is caught by the transitional provisions and the letter from the CSA to the wife dated 8 February 2008 (‘the review letter’) demonstrates that the Agreement is a ‘binding’ agreement for the purposes of the relevant legislation. This arises because:

  • the Agreement was reviewed by the CSA before 1 July 2008;
  • the CSA made a determination that the agreement “will continue after 30 June 2008”; and
  • there is no evidence that either party objected to the determination made in the review letter.”

Monahan FM concluded at paras 99-100 as follows:

“I am satisfied that the Agreement should be set aside. It is clear that the husband’s bankruptcy produced a significant and substantial change in his financial circumstances. It was not a business that was resurrected to its former glory following Ms M’s involvement.

I am also satisfied that the failure of the husband’s business, and husband’s subsequent bankruptcy, was an exceptional circumstance and that if the agreement is not set aside, the husband will suffer financial hardship if the considerable arrears payable under the agreement are enforced.”