Applying to court for a stay order

Child support matters are generally started in the Federal Circuit and Family Court of Australia (FCFCOA) although some matters may be dealt with in the Local Court. These instructions will help you to file your application in 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.

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

That pursuant to 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 application for a change to the child support assessment.

An affidavit is a written statement setting out the evidence to support your application in your own words. You should explain why you are applying to court for a stay order and attach relevant documents from Child Support – for example, a copy of the current child support assessment, a letter from Child Support confirming you have applied to change your assessment or a copy of the Child Support decision to which you have lodged an objection.

The financial statement is a detailed form that asks about your income, expenses, property and financial resources. Your affidavit and the completed financial statement must both be witnessed by a lawyer or Justice of the Peace. They will ask you to swear or affirm that the information in each document is true before you sign them.

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

After you have prepared your court documents, you must send them to the court registry for filing. You are not required to pay a filing fee for child support matters. As at January 2022, these applications cannot be e-filed on the Commonwealth Courts Portal, so you should email them to the court registry. 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.

The court registry will file your application and send you an email telling you the file number, and the date and time that your matter is listed before the court. You will need to register to use the Commonwealth Courts Portal (www.comcourts.gov.au) to download sealed (stamped) copies of your documents for service on the other party and Child Support.

You must arrange to serve a sealed copy of the documents on the other party in your child support case. You cannot do this yourself. You may choose to use a commercial process server to serve the court documents. The person who serves the documents must complete an Affidavit of Service. More information about service is available on the court website 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.

You must attend court on the first court date. If you do not attend your application may be dismissed. You should take all your paperwork with you to court, including your proof that the other party has been served. If the court has advised you that you have a telephone or audio-visual hearing, make sure that you have copies of the document with you when you call or join the conference.

If the other party has not had much time between receiving the documents and the court date he or she may ask for an adjournment. It may be possible for you and the other party to reach an agreement about the making of a stay order. If this is the case, that agreement can be made into consent orders by the court. If you and the other party cannot reach an agreement the court will fix a time for hearing. This may be on the same day or another date. If the other party does not attend court and you have proof that he or she was served with your application the court may deal with the matter in his or her absence.

If the court grants the stay order, you should advise Child Support immediately. You should obtain a sealed copy of the orders from the Commonwealth Courts Portal and forward it to Child Support.

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.