Go to content

Applying for a stay order

Fact sheet 4

If the Department of Human Services: Child Support (“Child Support”) is collecting child support from you, you can apply for a stay order to suspend or reduce child support while Child Support, the Administrative Appeals Tribunal (AAT) or the Court makes a decision in relation to your child support case. The Child Support Service of Legal Aid NSW can give you advice about this. This Fact Sheet explains the steps you can take. If you are unsure about any of these steps, please contact us to make an appointment.

Do you need a stay order?

You may not need a stay order if you have made an application to a court for a paternity declaration because you think you are not the father of a child. In that case you should send Child Support a copy of your court application.

Child Support may continue to collect money from you, but they must stop paying the money to the mother until the paternity proceedings have been finalised. The Child Support will hold any money collected from you in trust for this period.

How do I apply to court?

Child support matters are generally started in the Federal Circuit Court (www.federalcircuitcourt.gov.au), although some matters may be dealt with in the Local Court.

You can only apply for a stay order in a child support matter if you have 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
  • you have other child support proceedings before the Court .

You may choose to use a private solicitor or you can make an application to court yourself.

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.federalcircuitcourt.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 Registrars 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 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 Child Support decision to which you have lodged an objection.

More information about preparing an affidavit is available on the Federal Circuit Court’s website: www.federalcircuitcourt.gov.au

Filing your documents at the Court

After you have your court documents witnessed you must take the original and three copies of the documents to the Court for filing. The Court will give you a date to come to court and return three sealed (stamped) copies to you. You will need to serve the sealed copies on the other party and Child Support. The third copy is for you to keep.

Service of documents

You will need to serve a sealed copy of the documents on the other party. 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 Federal Circuit Court’s website at www.federalcircuitcourt.gov.au —simply type in ‘How do I serve family law

documents?’ in the search bar.

You can serve a copy of the documents on Child Support by mailing them to GPO Box 9815, Melbourne VIC 3001. You should ask Child Support to provide an Acknowledgement of Service.

What happens on the Court date?

You must attend court on the court date. You should take all your paperwork with you, including your proof that the other party has been served. 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 Court and forward it to Child Support.

it is very important to remember that a stay order is temporary. If your application to change the assessment 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?

In limited circumstances you may be able to get a grant of legal aid to apply for a stay order. You will need to complete a legal aid application form and provide us with proof of your income and assets. If you are eligible then Legal Aid NSW will make the application to court on your behalf. Contact us for more information.

Child Support Service, Legal Aid NSW

Level 4, 128 Marsden Street,Parramatta NSW 2150

PO Box 165, Parramatta NSW 2124

Ph: (02)9633 9916 or Toll free(regional): 1800 451 784

Fax: (02) 9689 1082

Email: admin.css@legalaid.nsw.gov.au

This fact sheet provides basic information only and is not a substitute for legal advice. If you are likely to be involved in court proceedings or legal action, you should get advice from a lawyer. Lawyers can be obtained privately, through Legal Aid NSW or at Community Legal Centres. The Child Support Service of Legal Aid NSW may also be able to provide you with advice.

Last updated November 2018