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 or duress or there are exceptional circumstances
• 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
• 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. From 1 July 2008, stay orders can address a specific collection action of the DHS(CS). For example, a stay order could:
o order the DHS(CS) to cease collecting from a payer’s salary;
o order the DHS(CS) to withdraw or modify a garnishment notice;
o order the DHS(CS) not to collect a payer’s taxation refund;
o order the DHS(CS) not to disburse monies held to the payee; or
o order the DHS(CS) 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 child support application form with the Court. In support of the application, the applicant must also file:
(a) an affidavit setting out the facts and circumstances relied on and the grounds of the application, attaching:
(i) a copy of any assessment made by the Child Support Registrar relevant to the application
(ii) a copy of any decision made by the Child Support Registrar or AAT relevant to the application and statement of reasons for that decision, and
(iii) a copy of any orders relevant to the application.
(b) a completed financial statement or affidavit of financial affairs.
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.
A person must file an application for a paternity declaration or non-paternity declaration within 56 days of the service on the applicant of a decision made by the Department of Human Services (Child Support) concerning an application for a child support administrative assessment.
The court may extend the time limit. If you are filing a child support application beyond a prescribed time limit seek legal advice about seeking the extension of time.
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:
(a) the respondent
(b) a parent or eligible carer of the child, and
(c) 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.
Note: A copy of the Court brochure – Child Support Applications – must also be served on the respondent.
Responding to a child support application
A respondent to an application must file a response. A response must be filed and served within 28 days of service of the application.
A response may:
(a) indicate consent to an order sought by the applicant
(b) ask the Court to make another order
(c) ask the Court to dismiss the application or appeal
(d) seek orders in a matter other than the matter set out in the application, or
(e) make a cross-claim against the applicant, or another party.
The respondent must also file an affidavit stating the facts relied on. Where the application relates to financial matters, the respondent must also file a completed financial statement or affidavit of financial affairs.
In all applications, apart from paternity cases, each party (other than the Child Support Registrar) must bring the following documents to the first and all subsequent hearing dates:
(a) a copy of the party’s taxation return for the three most recent financial years
(b) the party’s taxation assessment for the three most recent financial years
(c) the party’s bank records for the period of three years ending on the date when the application was filed
(d) if the party receives wage or salary payments; the party’s payslips for the past four pay periods
(e) 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
(f) any other document relevant to determining the income, needs and financial resources of the party.
Note: – Documents that may need to be produced under paragraph (f) include documents setting out the details mentioned in rule 24.03 of the Federal Circuit Court Rules 2001 – Full and Frank
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 three working days of the request being received.