You may apply for a stay order to suspend or reduce child support 
 

Child Support ('Child Support') is collecting child support from you while Child Support, the Administrative Appeals Tribunal (AAT) or the court decides your child support case.

Do I need a stay order?

In order to get a stay order in a child support case, you must have the following:

• made an application to Child Support for the assessment to be changed in special circumstances or

• made an application to the AAT about your child support case or

• lodged an objection to a Child Support decision or

• other child support proceedings before the court.

In the case where you believe you are not the father of a child, you may not need a stay order. If so, you should send Child Support a copy of your court application.

While Child Support may continue to collect money from you, they must not pay the money to the mother until the paternity proceedings have been finalized. Child Support will hold any money collected from you in trust during this period.

What is the process for applying to court?

Step 1: Get the court forms

The Federal Circuit and Family Court of Australia (FCFCOA) generally deals with child support matters, although some may be dealt with in the Local Court. The instructions below will assist you in filing your application with the FCFCOA.

You will need to prepare the following documents:

• An Initiating Application.

• An affidavit in support of your application.

• A completed financial statement.

You can download these forms from www.fcfcoa.gov.au or you can call the court on 1300 352 000 and they will post the forms to you.

Step 2: Prepare your court application

In the Initiating Application, you should ask the court to make the specific order you are seeking. For example:

In accordance with section 111C of the Child Support (Registration and Collection) Act 1988, the collection of child support is stayed pending the Child Support Registrar's decision on the applicant's child support assessment request.

A written affidavit lays out the evidence you have to support your application in your own words and tells the court why you are asking for a stay order. Attach relevant documents from Child Support, such as a copy of the current child support assessment, a letter from Child Support confirming your application to change your assessment or a copy of the decision to which you have objected.

In a financial statement, you provide details about your income, expenses, assets, and financial resources.

The affidavit and financial statement must both be witnessed by a lawyer or Justice of the Peace, who will ask you to swear or affirm that the information is accurate.

For more information about preparing an affidavit and a financial statement, visit the court website www.fcfcoa.gov.au.

Step 3: Filing your documents at court

Your court documents must be filed at the court registry after they have been prepared. You do not have to pay a filing fee for child support matters. You should email these applications to the court registry as of January 2022, as they cannot be e-filed through the Commonwealth Courts Portal. Check the court website www.fcfcoa.gov.au/court-locations or call the court on 1300 352 000 to find the registry closest to you and the email address for filing applications that cannot be e-filed.

Your application will be filed with the court registry, and you will receive an email informing you of the file number, date, and time of your hearing. In order to download sealed (stamped) copies of your documents for service on the other party and child support, you will need to register on the Commonwealth Courts Portal (www.comcourts.gov.au).

Step 4: Service of documents

It is your responsibility to serve a sealed copy of the court documents on your child support opponent. Affidavits of Service must be completed by the person who serves the court documents. You cannot serve the court documents yourself. The person who serves the court documents must complete the Affidavit of Service. Detailed information about the service can be found at www.fcfcoa.gov.au/hdi/serve-fl-documents.

You can serve a copy of the documents on Child Support by mailing them to GPO Box 9815, Melbourne VIC 3001. You should include a covering letter asking Child Support to provide an acknowledgement of service for you to show the court.

Step 5: What happens on the first court date?

The court requires you to attend the first hearing. If you do not attend, your application will be dismissed. You should bring your paperwork to court, as well as proof that the other party has been served.

In case of an audio-visual hearing or telephone call, be sure to have a copy of the document on hand.

You may be able to reach an agreement with the other party about the making of a stay order if there is not much time between receiving the documents and the court date. If this is the case, the court can make that agreement into a consent order. If you and the other party cannot reach an agreement, the court will set a hearing date. This could happen the same day or at another date. The court may conduct the proceedings in the absence of the other party if you have proof that he or she was served with your application.

As soon as the court grants the stay order, you should notify Child Support and obtain a sealed copy from the Commonwealth Courts Portal.

It is very important to remember that a stay order is temporary while a decision is made on your application, objection or appeal. If your other application is not wholly successful, you will still be required to pay the child support that you did not pay for the period of the stay order.

Can I get legal aid?

If you qualify for legal aid, you may be able to apply for a stay order. To apply for legal aid, you will need to complete a legal aid application form and provide proof of your income and assets. Legal Aid NSW will make the application for you if you are eligible. For more information, contact LawAccess NSW at 1300 888 529.