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Starting child support proceedings in court

Fact sheet 3

If you have special circumstances that make your child support assessment unfair, you may be able to apply to the Department of Human Services: Child Support (“Child Support”). for a “Change of Assessment”. You can get further information and obtain an application form by contacting Child Support on 131 272 or visiting the website at www.dhs.gov.au

However, Child Support cannot change assessments that are older than 18 months. If you need to apply to change older assessments you must apply to a court for leave. The court can either grant leave to Child Support to change the assessment, or can grant leave and then also consider the application to change (or depart from) the assessments itself.

In deciding whether to grant leave, the Court must consider:

  • Any reasons for your delay in seeking a change to the child support assessment
  • Any hardship that would be caused to you and the other party to the child support assessment.

Note: The Court cannot change assessments that are older than 7 years

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.

Documents to prepare

You will need to prepare the following documents:

  • An Initiating Application setting out the orders you seek. You are the applicant, and the respondent is the other party to the assessment (usually the other parent of the children)
  • An Affidavit setting out the evidence you rely on in support of the orders you are seeking
  • A Financial Statement providing full disclosure of your financial circumstances

You can download these forms online at www.federalcircuitcourt.gov.au or you can obtain them from the Court registry (call 1300 352 000 for more information).

In the Initiating Application you will need to set out the orders you would like the Court to make. The court will need to know exactly which period you are seeking to change.

The following orders are examples of orders you might seek but note that each case is different and you should therefore seek legal advice about the most appropriate orders to seek.

Sample Orders

To ask for leave to apply to Child Support for a change to an assessment that is older than 18 months:

That pursuant to section 112 of the Child Support (Assessment) Act 1989, leave is granted for the Child Support Registrar to make a determination under section 98S of that act in relation to assessments of child support payable by the applicant [NAME] to the respondent [NAME] for the children [NAMES AND DATES OF BIRTH] for the period from [DATE] to [DATE].

To ask the Court to grant leave and also consider the change to the assessment itself:

That pursuant to section 112 of the Child Support (Assessment) Act 1989, leave is granted to depart from assessments of child support payable by the applicant [NAME] to the respondent [name] for the children [NAMES AND DATES OF BIRTH] for the period from [DATE] to [DATE].

Pursuant to section 118 of the Child Support (Assessment) Act 1989. That for the period [DATE] to [DATE], the annual rate of child support payable by the applicant [NAME] to the respondent [name] for the children [names and dates of birth] be set at [$X]

OR

The pursuant to section 118 of the Child Support (Assessment) Act 1989 that for the period [DATE] to [DATE], the child support income of the applicant [NAME] be set at [$X].

An affidavit is a written statement setting out the evidence to support your application in your own words. Your affidavit should attach copies of the assessments you want to change. If you don’t have these you can get copies by contacting Child Support on 131 272. Your affidavit should also address the following matters:

  • A brief history of your relationship with the other party and when the child support assessment was made.
  • The reasons why you did not apply for a change of assessment sooner (eg the other parent had income or financial resources you were not aware of, or you were in hospital, or gaol etc)
  • The hardship that would be caused to you if you were not granted leave (eg you cannot pay rent or other essential bills)
  • Any other matters relevant to your application

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

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 first court date?

You must attend court on the first court date. You should take all your paperwork with you to court, including your proof that the other party has been served. You must attend court on the day the matter is listed. If you don’t attend, your matter is likely to be dismissed.

The Court may:

  • Deal with the application on the first date
  • Adjourn the application to be heard on another day
  • Make directions for you and/or the other party to file more material

Important: If the Court grants leave for Child Support to consider a change to the assessments, you will then need to apply to Child Support. You should attach a copy of the Court’s order granting you leave. Just because the Court has granted leave, does not mean Child Support will change the assessment in the way that you want.

Can I stop paying child support in the meantime?

You can ask the Court to make a stay order. If the Court grants a stay order Child Support is prevented from collecting child support from you until the matter is decided on a final basis. (See Our Fact Sheet 4 for more information about stay orders).

Can I get legal aid?

You may be able to get a grant of legal aid. You will need to complete a legal aid application form and provide 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