Child Support Applications

This brochure explains what type of child support applications and appeals can be filed in the Federal Circuit and Family Court of Australia (the Court).

Glossary of terms

Appeal – a procedure which allows a person to challenge whether a decision is legally correct. 

Appellant – a person who files an appeal with a court.

Applicant – a person who applies to a court for orders.

Eligible carer – a person who has at least shared care of a child.

Cross appeal – a procedure which allows a person responding to an appeal to also challenge whether a decision is legally correct.

Respondent – a person named as a party to a case; who may or may not respond to the orders sought by the applicant.

Parent – includes a person who is the child’s biological parent, adoptive parent or parent by virtue of an artificial conception procedure.

Payee – a person who is entitled to receive payments under a child support liability.

Payer – a person who is liable to make payments under a child support liability.

Before you apply to the Court

The Court only has the power to hear certain types of child support applications and appeals. In most situations, parents or eligible carers must first satisfy all administrative requirements with Services Australia (Child Support) (Services Australia). For more information about fulfilling the Services Australia administrative requirements:

Generally, a parent or eligible carer who disagrees with a Services Australia decision must lodge an objection with Services Australia. An application can then be made to the Administrative Review Tribunal (ART) for a review of an objection* decision. The ART cannot, however, review all objection decisions of Services Australia. To find out which objection decisions the ART can review:

Where the ART cannot review an objection decision, parents or eligible carers may be able to apply to the Court for orders.

* Before applying to the ART for a review, the parent or eligible carer must lodge an objection to the decision with Services Australia and wait to receive a response from Services Australia. 

Legal advice

You should seek legal advice before deciding what to do. A lawyer can help you understand your legal rights and responsibilities, and explain how the law applies to your case. A lawyer can also help you reach an agreement with the other party without going to court.

You can seek legal advice from a:

  • legal aid office
  • community legal centre, or
  • private law firm.

Court staff can help you with questions about court forms and the court process, but cannot give you legal advice.

Applications

The Court can hear:

  • an application for a declaration that a person is or is not a parent of a child for the purposes of paying or not paying child support
  • an application for recovery of child support paid when a person is not liable to pay child support
  • an application for leave to depart from an administrative assessment for a period over 18 months but less than seven years ago
  • an application for child support to be paid in a form other than periodic amounts (or an application to discharge, suspend, revive or vary a previous court order about child support)
  • an application to set aside a binding child support agreement if the agreement was obtained by fraud, undue influence, duress or unconscionable conduct, or there are exceptional circumstances that have arisen since the agreement was made that mean a child or a party will suffer hardship if the agreement is not set aside
  • an application to set aside a limited child support agreement if there has been a significant change in circumstances of one of the parties or the annual rate of child support is not proper or adequate, or if the agreement was obtained by fraud, undue influence, duress or unconscionable conduct.
  • an urgent application for the payment of child support
  • an application for a stay order, which is a temporary order that suspends or reduces the payment of child support until a final order is made. Stay orders can address a specific collection action of Services Australia. For example, a stay order could:
    • order Services Australia to cease collecting from a payer's salary
    • order Services Australia to withdraw or modify a garnishment notice
    • order Services Australia not to collect a payer's taxation refund
    • order Services Australia not to disburse monies held to the payee, or
    • order Services Australia to cease any and all administrative collection.
  • an application about child maintenance or overseas child maintenance orders
  • an application to recover a child support debt by the Child Support Registrar or payee
  • an application by the Child Support Registrar to set aside a transaction (or restrain a person from entering into a transaction) to reduce or defeat a maintenance liability.

Applying to the Court

To start a case, a person (the applicant) must file an application form with the Court. In support of the application, the applicant must also file:

  • an Affidavit – Family law and child support setting out the facts and circumstances relied on and the grounds of the application, attaching:
    • a schedule setting out the section of the Assessment Act or Registration Act under which the application is made
    • a copy of any decisions, notice of decision or assessment made by the Child Support Registrar relevant to the application and statement of reasons for that decision
    • a copy of any document lodged by a party with the Child Support Registrar or received by a party from the Child Support Registrar, relevant to the decisions or assessment. If a party does not have a copy, the applicant may file the summary of the document prepared by the Child Support Registrar
    • a copy of any orders relevant to the application.
  • a completed Financial Statement

If the case relates to a child support agreement, the applicant must register a copy of the agreement with the Court by attaching a copy of the agreement to an affidavit.

Parties should refer to the Family Law Practice Direction – Child Support and Child Maintenance Proceedings for more information.

Time limits

A person must file an application for a declaration that a person should or should not be assessed in respect of the costs of the child within 56 days of the service on the applicant of a decision made by Services Australia concerning an application for a child support administrative assessment.

The Court may extend the time limit. If you are filing an application beyond a prescribed time limit seek legal advice about seeking the extension of time.

Service

Service is the process of sending or giving court documents to a party after they have been filed with the Court.
The applicant must arrange to serve:

  • the respondent
  • a parent or eligible carer of the child, and
  • the Child Support Registrar.

In most situations, an application must be served at least 28 days before the hearing date. The applicant must serve any further documents on which he or she intends to rely on each party to the proceedings at least 21 days before the hearing date.

For child support appeals from a decision of the Tribunal, the applicant must also serve the Registrar of the Tribunal and any other parties to the appeal.

Note: A copy of this brochure must also be served on the respondent.

Responding to an application

A respondent to an application must file a Response consenting to or opposing any of the orders sought by the applicant, or if seeking any other orders. A response must be filed and served within 28 days of service of the application. A response may:

  • indicate consent to an order sought by the applicant
  • ask the Court to make another order
  • ask the Court to dismiss the application
  • seek orders in a matter other than the matter set out in the application, or
  • make a cross-claim against the applicant, or another party.

The respondent must also file an affidavit stating the facts relied on. In child support matters, the respondent must also file a completed Financial Statement.

However, if the respondent does not wish to contest any of the orders sought by the applicant and will submit to any order the Court may make, a Submitting Notice should be filed.

Evidence

In all applications child support proceedings (other than the Child Support Registrar) must bring the following documents to the first and all subsequent hearing dates:

  • a copy of the party’s taxation return for the three most recent financial years
  • the party’s taxation assessment for the three most recent financial years
  • the party’s bank records for the period of three years ending on the date when the application was filed
  • if the party receives wage or salary payments; the party’s payslips for the past four pay periods
  • if the party owns or controls a business; the business activity statements and the financial statements and accounts (including profit and loss statements and balance sheets) for the business for the three most recent financial years
  • any other document relevant to determining the income, needs and financial resources of the party.

Before the hearing date, a party must produce the documents outlined in paragraphs (a) to (f) for inspection, if the other party to the case makes a written request for their production. If a request is made, the document must be produced within 7 working days of the request being received.

Rule 6.06 Duty of disclosure – financial proceedings

  1. The duty of disclosure applies to a financial proceeding.
  2. Subrules (3) to (9) do not apply to a party to a property proceeding who is not a party to the marriage or de facto relationship to which the application relates, except to the extent that the party’s financial circumstances are relevant to the issues in dispute.
  3. Without limiting subrule (1), a party to a financial proceeding must make full and frank disclosure of the party’s financial circumstances, including:
    1. the party’s earnings, including income that is paid or assigned to another party, person or legal entity
    2. any vested or contingent interest in property
    3. any vested or contingent interest in property owned by a legal entity that is fully or partially owned or controlled by a party
    4. any income earned by a legal entity fully or partially owned or controlled by a party, including income that is paid or assigned to any other party, person or legal entity
    5. the party’s other financial resources
    6. any trust:
      1. of which the party is the appointor or trustee
      2. of which the party, the party’s child, spouse or de facto spouse is an eligible beneficiary as to capital or income
      3. of which a corporation is an eligible beneficiary as to capital or income if the party, or the party’s child, spouse or de facto spouse is a shareholder or director of the corporation
      4. over which the party has any direct or indirect power or control
      5. of which the party has the direct or indirect power to remove or appoint a trustee
      6. of which the party has the power (whether subject to the concurrence of another person or not) to amend the terms
      7. of which the party has the power to disapprove a proposed amendment of the terms or the appointment or removal of a trustee, or
      8. over which a corporation has a power mentioned in any of subparagraphs (iv) to (vii), if the party, the party’s child, spouse or de facto spouse is a director or shareholder of the corporation;
    7. any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity mentioned in paragraph (c), a corporation or a trust mentioned in paragraph (f) that may affect, defeat or deplete a claim:
      1. in the 12 months immediately before the separation of the parties, or
      2. since the final separation of the parties, and
    8. liabilities and contingent liabilities.
  4. Paragraph (3)(g) does not apply to a disposal of property made with the consent or knowledge of the other party or in the ordinary course of business.

…

Appeals

The Court can hear:

  • an appeal from a decision of the ART in a child support first review, and
  • an appeal from a decision of the Child Support Registrar to issue a departure prohibition order.

A party to a proceeding before the ART may appeal to the Court against a decision of the ART on a question of law*. The ART may also refer a question of law arising from the proceedings to the Court.

* Question of law – an issue arising from a case about how the law was applied or not applied to the facts of a case or about whether the process was legally adequate.

A delegate of the Child Support Registrar may make an order, known as a departure prohibition order, stopping a person from leaving Australia. A person aggrieved by the making of a departure prohibition order may appeal to the Court against the making of the order.

Filing an appeal with the Court

To appeal a decision made by the ART, a person (the appellant) must file a Notice of Appeal (Child Support) form.

To appeal a decision made by Child Support Registrar to issue a departure prohibition order, the appellant must file a Notice of Appeal (Child Support) form.

In child support appeals, the Child Support Registrar must be included as a party to the appeal.

A copy of the ART or Child Support Registrar’s decision must be attached to the appeal form, along with the statement of reasons for the decision being appealed. The ART’s decision will usually include the statement of reasons.

The appellant may also file a completed Financial Statement and any affidavits that are to be relied on in the appeal. However, further evidence will not normally be admitted on the hearing of an appeal. If the appellant wishes to rely on further evidence, they must indicate this on the Notice of Appeal and file an affidavit setting out the additional evidence that is to be relied on.

Time limits

The appellant must file an appeal from a decision of the ART within 28 days of receiving a written statement of reasons for the decision.  An appellant can ask the court to extend the time limit.

Service

The appellant must arrange to serve:

  • the respondent
  • a parent or eligible carer of the child
  • the Child Support Registrar, and 
  • the ART* (if it is an appeal from the ART).

* The appellant must serve a notice of appeal from a decision of the ART on the ART within seven days of the day of filing the appeal with the Court.

The appellant must serve any further documents on which he or she intends to rely on all parties to the proceedings at least 21 days before the hearing date.

Note: A copy of this brochure must also be served on the respondent.

Responding to an appeal

A respondent to an appeal may file a cross-appeal. The cross-appeal form is the same as the Notice of Appeal (Child Support) with the addition of the word ‘Cross’ inserted before ‘Appeal’; for instance, Notice of Cross-Appeal (Child Support). The respondent must serve a copy of the notice on each party to the proceedings within 21 days after service of the Notice of Appeal.

Note: If a response is not filed, the respondent must file a Notice of Address for Service.

The Court hearing

All parties must attend the Court hearing and bring all relevant documents with them. Sometimes a party (or witness) may appear via video or telephone. This needs to be arranged with the Court prior to the hearing.

How the hearing is conducted may vary depending on the type of application or appeal, the issues in dispute and the complexity of the case. In some court locations, child support applications and appeals can often be heard and determined on the first court date. It is advisable to check if any special procedures or requirements apply in the location where your application or appeal is listed.

Legislation 

Depending on the circumstances of the case, the Court may consider the following Acts and Rules:

Another useful legal resource is the Child Support ‘Guide’, available at https://guides.dss.gov.au/child-support-guide. The guide sets out the Child Support Policy and view of the child support scheme and its administration.

More information

For more information, including access to the Acts, Rules and any of the forms or publications mentioned in this brochure go to www.fcfcoa.gov.au or contact the Court.

This brochure provides general information only and is not provided as legal advice. If you have a legal issue, you should contact a lawyer before making a decision about what to do or applying to the Court. The Federal Circuit and Family Court cannot provide legal advice.

Approved by the Chief Justice/Chief Judge pursuant to subrule 15.21 of the Family Law Rules 2021.

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

0921V3

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