WA Set aside BFA
- Thread starter Hoang Trang
- Start date
@Rod makes a good point ... you would think that a one in 100 year pandemic & the economic fallout from it would meet anybody's definition of an exceptional circumstance.
Important to remember that the CS Registrar doe's not have authority to set aside a BCSA. It can only be set aside by a court order, & having already spent over $20K on legals with no real progress (your words), I'm not sure you have the appetite for more lawyers & court.
If you want to do some reading of examples of what a court may consider exceptional circumstances in this context, have a read of the case below (chapter 60 -65 in particular)
Nettleship & Nettleship [2016] FCCA 2947 (18 November 2016)
As bad as COVID may have hit you as a cafe owner during lock-downs, I expect you were eligible for Govt assistance of some sort, & will probably get back to normal trading if you haven't already... That may affect the way in which a judge could view the impact & if that impact amounted to an exceptional circumstance that is also going to cause you or the child ongoing hardship if the BCSA is not set aside.
Strange - but I don't reckon a 1 in 100 year pandemic is that big a deal. (one of the strangest things I've written during my time here)
But childhood goes for 18 years, this pandemic is gonna be over within a year or so. So sure strange days indeed, but not long term exceptional circumstances.
But childhood goes for 18 years, this pandemic is gonna be over within a year or so. So sure strange days indeed, but not long term exceptional circumstances.
Agree ... Exceptional circumstance has to be viewed in context of how it relates directly to long term hardship IF the BCSA is not set aside.
Read one case where a BCSA was made when care levels were around 65% / 35%.... Care level changed for the 65% parent & reduced to around 15% after teenager moved to non primary carer full time .... An application for exceptional circumstances still failed
Read one case where a BCSA was made when care levels were around 65% / 35%.... Care level changed for the 65% parent & reduced to around 15% after teenager moved to non primary carer full time .... An application for exceptional circumstances still failed
Martyn & Martyn [2020] FamCA 526 (1 July 2020)
FAMILY LAW – CHILD SUPPORT – Binding child support agreement – Where the father seeks an order setting aside a binding child support agreement –Where the father seeks an order extinguishing the arrears payable under the binding child support agreement – Where the father owns a business that has been significantly impacted by the COVID-19 pandemic – Whether there are exceptional circumstances which relate to the father – Whether the father will suffer hardship if the binding child support agreement is not set aside – Orders made that the binding child support agreement be set aside – Application to extinguish arrears dismissed.
It is possible! The OP should do the maths on whether it is worth paying for assistance to overturn the BFA or adopt the DIY approach.
FAMILY LAW – CHILD SUPPORT – Binding child support agreement – Where the father seeks an order setting aside a binding child support agreement –Where the father seeks an order extinguishing the arrears payable under the binding child support agreement – Where the father owns a business that has been significantly impacted by the COVID-19 pandemic – Whether there are exceptional circumstances which relate to the father – Whether the father will suffer hardship if the binding child support agreement is not set aside – Orders made that the binding child support agreement be set aside – Application to extinguish arrears dismissed.
It is possible! The OP should do the maths on whether it is worth paying for assistance to overturn the BFA or adopt the DIY approach.
It is... The case cited above however, while relying on COVID 19 to satisfy the court of exceptional circumstances & hardship involves vastly different circumstances than that of how the same pandemic is impacting @Hoang Trang (based only on what he has shared with us anyway)
In the case cited, the applicant business derived 90%+ of it's income from international export.... The restriction on overseas travel saw his income reduced by 90% overnight, & the court agrees that is going to be the case for the foreseeable future .... Vastly different than a cafe owner impacted by lock downs temporarily I would think.
Martyn & Martyn [2020] FamCA 526 (1 July 2020)
Another thing to consider, if the BCSA is set aiside then child support will revert to the assessed amount.
if the mother works from home with her own beauty salon, I imagine it would be incredibly easy to hide income and therefore pay very little child support anyway. She obviously isn’t inclined to support her child when it’s the right thing to do, so I can’t imagine that changing
if the mother works from home with her own beauty salon, I imagine it would be incredibly easy to hide income and therefore pay very little child support anyway. She obviously isn’t inclined to support her child when it’s the right thing to do, so I can’t imagine that changing
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