Family Law Practice Direction – Child support and child maintenance proceedings

(FAM-CHILDSUPPORT)

1. Introduction

1.1 This Practice Direction sets out the procedure for all family law proceedings with respect to child support and/or child maintenance (including overseas child maintenance). It addresses each of the following:

  1. an application for orders (excluding appeals) (child support proceedings) under:
    1. the Child Support (Assessment) Act 1989 (Cth) (Assessment Act); and/or
    2. the Child Support (Registration and Collection) Act 1988 (Cth) (Registration Act);
  2. an appeal (child support appeal) to the Federal Circuit and Family Court of Australia (FCFCOA) from a decision of:
    1. the Administrative Appeals Tribunal (Tribunal) with respect to child support under section 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act); or
    2. the Child Support Registrar to make a departure prohibition order under section 72Q of the Registration Act; and
  3. an application for orders for child maintenance or overseas child maintenance (child maintenance proceedings) under:
    1. Division 7 of Part VII of the Family Law Act 1975 (Cth) (Family Law Act); or
    2. Parts III and IV of the Family Law Regulations 1984 (Family Law Regulations).

1.2 It is to be read together with:

  1. the Family Law Act;
  2. the Assessment Act;
  3. the Registration Act;
  4. the Family Law Regulations;
  5. the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules); and
  6. Central Practice Direction – Family Law Case Management.

1.3 The FCFCOA may consider child support proceedings only in limited circumstances (see the Assessment Act and Registration Act).

1.4 The FCFCOA may consider an application for child maintenance provided it is not otherwise possible for a party to apply for child support pursuant to the Assessment Act: see section 66E of the Family Law Act.

1.5 This Practice Direction applies to all proceedings commenced on or after 1 September 2021. This Practice Direction will also apply to all proceedings commenced prior to 1 September 2021, unless unfair or impractical to do so.

1.6 To the extent this Practice Direction is inconsistent with any act, regulation, rule or other legislative provision (whether or not expressly listed above), the act, regulation, rule or other legislative provision shall prevail.

2. Before a proceeding starts

2.1 Disputes about child support should primarily be dealt with by way of administrative determination rather than the more complex and costly process that tends to occur in the court system because of the adversarial nature of proceedings.

2.2 With respect to child support proceedings and child support appeals, parties are exempt from complying with the pre-action procedures in Schedule 1 of the Family Law Rules under rule 4.01(2)(c). However, parties should take genuine steps to resolve the dispute before an application is made or an appeal is commenced.

2.3 With respect to child maintenance proceedings:

  1. each prospective party to the proceeding must comply with the pre-action procedures in Schedule 1 of the Family Law Rules, unless an exception in rule 4.01(2) applies. Those pre-action procedures require parties to take genuine steps to resolve the dispute before proceedings are instituted; and
  2. a Genuine Steps Certificate must be filed with any Initiating Application (Family Law) or Response to Initiating Application in child maintenance proceedings.

3. Application

Where to commence

3.1 Child support proceedings and child maintenance proceedings must be commenced in the family law registry of the FCFCOA.

3.2 A child support appeal must be commenced in the general federal law registry of the FCFCOA.

Parties to child support proceedings, child maintenance proceedings and child support appeals

3.3 A child support proceeding may be commenced by an affected person.

3.4 A child support appeal may be commenced by a party to the decision.

3.5 A child maintenance proceeding may only be commenced by a person listed in section 65C of the Family Law Act.

3.6 An application must include all necessary parties: see Part 3.1 of the Family Law Rules. In a child support proceeding, the Child Support Registrar does not need to be joined as a party but may intervene in the case: see section 145 of the Assessment Act. In child support appeals, the Child Support Registrar is a necessary party.

Limitation periods and leave requirements

3.7 When filing an Initiating Application (Family Law) for a declaration under sections 106A(2) or 107(1) of the Assessment Act, the application must be brought within 56 days of being served with a notice given under sections 33 or 34 of the Assessment Act.

3.8 A party seeking orders to depart from an administrative assessment of child support pursuant to section 117 of the Assessment Act must seek the leave of the Court: see section 116 of the Assessment Act.

3.9 A party seeking to amend an administrative assessment of child support that is more than 18 months old must seek the leave of the Court: see section 111 of the Assessment Act.

3.10 A child support appeal from a decision of the Tribunal must be filed within 28 days after the person receives a written statement of reasons for the decision: see sections 44(2A) and 44AAA(2)(a) of the AAT Act.

3.11 In the event that a child support proceeding or child support appeal is filed out of time, leave must be sought by the applicant in the application as an interlocutory order, together with an affidavit stating the facts relied on in support of the application for leave.

3.12 An application for child maintenance proceedings can be brought at any time without leave.

Making an application and documents to file

Child support proceedings

3.13 A child support proceeding is commenced by filing an Initiating Application (Family Law).

3.14 An Initiating Application (Family Law) may include an application for interlocutory orders.

3.15 The following documents must be filed with an Initiating Application (Family Law) in child support proceedings:

  1. a Financial Questionnaire;
  2. a supporting affidavit which contains the following information and attachments:
    1. the facts relied on in support of the application;
    2. a schedule setting out the section of the Assessment Act or Registration Act under which the application is made;
    3. a copy of any decisions, notice of decision or assessment made by the Child Support Registrar relevant to the application and statement of reasons for that decision;
    4. a copy of any document lodged by a party with the Child Support Registrar or received by a party from the Child Support Registrar, relevant to the decisions or assessment. If a party does not have a copy, the applicant may file the summary of the document prepared by the Child Support Registrar;
    5. if the application seeks interlocutory orders, the facts relied on in support of the interlocutory orders sought; and
    6. if the applicant requires leave of the Court to file the application, the facts relied on in support of the application for leave;
  3. a Financial Statement (save for proceedings with respect to orders sought pursuant to sections 106A and 107 of the Assessment Act);
  4. if the applicant is aware that the Financial Statement will not fully discharge the duty to make full and frank disclosure, an affidavit providing further particulars: see rule 6.06(6) of the Family Law Rules;
  5. a copy of any relevant order; and
  6. where there is a relevant child support agreement:
    1. an affidavit annexing the original child support agreement (or a copy of the child support agreement certified as a true copy); or
    2. if a relevant child support agreement has been lost, an affidavit:
      1. stating that the original agreement has been lost and outlining the steps taken to locate the agreement; and
      2. attaching a copy of a document received from the Child Support Registrar setting out the terms of the agreement as registered by the Child Support Agency.

Child support appeals

3.16 A child support appeal is commenced by filing a Notice of Appeal – Child Support.

3.17 The following documents must be filed with a Notice of Appeal – Child Support in a child support appeal:

  1. a copy of the Tribunal's decision or the Child Support Registrar's departure prohibition decision;
  2. the statement of reasons for that decision;
  3. any Financial Statement upon which the appellant seeks to rely; and
  4. any affidavit upon which the appellant seeks to rely.

Child maintenance proceedings

3.18 A child maintenance proceeding is commenced by filing an Initiating Application (Family Law), unless the proceeding involves an application for consent orders only (which requires an Application for Consent Orders: see rule 10.04(4) of the Family Law Rules).

3.19 An Initiating Application (Family Law) in child maintenance proceedings may include an application for interlocutory orders.

3.20 The following documents must be filed with an Initiating Application (Family Law) in child maintenance proceedings:

  1.  a Genuine Steps Certificate, confirming the applicant's compliance with the pre-action procedures listed in Schedule 1 of the Family Law Rules;
  2. a Financial Statement;
  3. a Financial Questionnaire;
  4. in all child maintenance proceedings other than those seeking orders with respect to an overseas maintenance liability:
    1. a certificate given to the applicant by a family dispute resolution practitioner under section 60I(8) of the Family Law Act, unless a party submits that an exemption applies under section 60I(9) of the Family Law Act, in which case an affidavit or an Affidavit – Non-Filing of Family Dispute Resolution Certificate setting out the factual basis of the exception claimed under section 60I(9) is required: see rule 4.02 of the Family Law Rules;
    2. a Notice of Child Abuse, Family Violence or Risk; and
    3. a copy of any family violence order affecting the child or a member of the child's family in accordance with rule 2.10 of the Family Law Rules; and
  5.  if the application seeks interlocutory orders, an affidavit stating the facts relied on in support of the interlocutory orders sought.

3.21 The applicant must also pay the filing fee set by regulation, unless an exception applies. A Judge or Judicial Registrar may require a party to give an undertaking to pay a filing fee before accepting a document for filing.

When an affidavit is required

3.22 In child support proceedings, an affidavit is required to be filed with an Initiating Application (Family Law) in all proceedings.

3.23 In child support appeals, an affidavit is not required to be filed with a Notice of Appeal – Child Support.

3.24 In child maintenance proceedings, an affidavit is not required to be filed with an Initiating Application (Family Law) seeking final orders only.

3.25 An affidavit must be filed in the proper form as outlined in rules 2.14 (Formal requirements for documents) and 5.08 (Limit on number and length of affidavits) of the Family Law Rules.

Urgent applications

3.26 If an application for child support or child maintenance is urgent, the applicant must seek an order that the matter be given an urgent listing (urgent application). An urgent application must be accompanied by:

  1.  an affidavit stating the facts relied on in support of the urgent application; and
  2. a cover letter as to urgency, outlining the nature of the application and the basis upon which an urgent listing is required. The cover letter should refer to specific paragraphs of the affidavit relied upon in support of the urgent application.

3.27 If no application for final orders has been made, the urgent application should be included in the interlocutory orders sought in the Initiating Application (Family Law). If an application for final orders has already been made, an urgent application should be made by filing an Application in a Proceeding.

Notifying the other party/parties

3.28 In the case of all child support proceedings, child support appeals and child maintenance proceedings, the applicant must serve the following documents on each other party in accordance with Part 2.6 or Part 2.7 (as appropriate) of the Family Law Rules:

  1. Initiating Application (Family Law) or Notice of Appeal – Child Support;
  2. any affidavit filed;
  3. any Financial Statement filed;
  4. any Financial Questionnaire filed;
  5. any Notice of Child Abuse, Family Violence or Risk; and
  6. in child maintenance proceedings, the Marriage, Families and Separation brochure; or
  7. in child support proceedings and child support appeals, the Child Support Applications brochure.

3.29 The documents listed in paragraph 3.28 must be served on the following:

  1. each respondent;
  2. a parent or eligible carer of the child in relation to whom the application is made;
  3. the Child Support Registrar; and
  4. for child support appeals from a decision of the Tribunal to which this Practice Direction applies;
    1. the Registrar of the Tribunal; and
    2. any other parties to the appeal.

3.30 The Initiating Application (Family Law) or Notice of Appeal – Child Support must be served at least 28 days before the hearing date except for an application for:

  1. an order staying a decision;
  2. an order staying or otherwise affecting the operation or implementation of the Assessment Act of the Registration Act; or
  3. an urgent order for child maintenance.

3.31 Any supporting documents must be served at least 21 days before the first Court date.

3.32 In the case of a child support appeal from a decision of the Tribunal, the appellant must serve a Notice of Appeal – Child Support on the Tribunal within 7 days of filing the appeal.

What the Court will do next

3.33 Upon filing the Initiating Application (Family Law) or a Notice of Appeal – Child Support and supporting documents, the Court will fix a date as soon as practicable for the first Court event.

3.34 Any application made by a party for an urgent listing will be determined by a Judicial Registrar on the papers.

3.35 In child maintenance proceedings, if an Initiating Application (Family Law) or Response to Initiating Application is filed without a Genuine Steps Certificate, or before pre-action procedures have been complied with, and no exemption is applicable, the Court may stay the application until such time as the parties comply with the pre-action procedures: see rule 4.04 of the Family Law Rules.

3.36 In child maintenance proceedings other than those seeking orders with respect to an overseas maintenance liability, if an Initiating Application (Family Law) is filed without:

  1. a certificate issued pursuant to section 60I(8) of the Family Law Act;
  2. an affidavit setting out the factual basis of the exception claimed under section 60I(9) of the Family Law Act; or
  3. an Affidavit – Non-Filing of Family Dispute Resolution Certificate,

the Court must stay the application until such time as the applicant complies with the requirements of section 60I: see section 60I(7) of the Family Law Act.

4. Responding to an application

Child support proceedings and child maintenance proceedings

4.1 In child support proceedings and child maintenance proceedings, a respondent must file a Response to Initiating Application if consenting to or opposing any of the orders sought by the applicant, or if seeking any other orders in accordance with Part 2.4 of the Family Law Rules.

4.2 However, if a respondent does not wish to contest any of the orders sought by the applicant and will submit to any order the court may make, a Submitting Notice should be filed in accordance with rule 2.22 of the Family Law Rules.

4.3 The following documents must be filed with a Response to Initiating Application in child support proceedings:

  1. a Financial Statement (save for proceedings with respect to orders sought pursuant to sections 106A and 107 of the Assessment Act);
  2. if the respondent opposes the interlocutory orders sought by the applicant or seeks interlocutory orders in their Response to Initiating Application, an affidavit; and
  3. a Financial Questionnaire.

4.4 The following documents must be filed with a Response to Initiating Application in child maintenance proceedings:

  1. a Financial Statement (save for proceedings with respect to orders sought pursuant to sections 106A and 107 of the Assessment Act);
  2. if the respondent opposes the interlocutory orders sought by the applicant or seeks interlocutory orders in their Response to Initiating Application, an affidavit;
  3. a Genuine Steps Certificate, confirming the respondent's compliance with the pre-action procedures listed in Schedule 1 of the Family Law Rules;
  4. a Financial Questionnaire; and
  5. a Notice of Child Abuse, Family Violence or Risk, except where orders are sought with respect to an overseas maintenance liability.

4.5 A Response to Initiating Application must be filed and served within 28 days of service of the application to which it relates: see rule 2.18(2) of the Family Law Rules.

Child support appeals

4.6 In the case of a child support appeal, a respondent is not required to file a Response to Initiating Application, but must file either:

  1. a Notice of Address for Service, if the respondent wishes to contest the appeal; or
  2. a Submitting Notice, if the respondent does not wish to contest the appeal in accordance with rule 2.22 of the Family Law Rules.

4.7 A respondent to a child support appeal who also wants to appeal from the decision which the applicant has appealed, must file a Notice of Cross-Appeal in accordance with the approved form.

4.8 A respondent to a child support appeal who does not want to cross-appeal from the decision under appeal, but contends that the decision should be affirmed on grounds other than those relied on by the court appealed from, must file a Notice of Contention.

If the Response to Initiating Application raises a different type of proceedings

4.9 In the event a Response to Initiating Application seeks orders related to parenting proceedings or another type of proceedings not sought by the applicant in the application, the parties are directed to refer to Family Law Practice Direction – Parenting proceedings or such other relevant Practice Direction. In such cases, both Practice Directions apply to the proceeding.

4.10 Where a respondent seeks orders related to parenting proceedings or another type of proceedings for the first time in the Response to Initiating Application and the applicant seeks to oppose those orders or seek different orders, the applicant must file a Reply with respect to those orders pursuant to rule 2.21 of the Family Law Rules.

5. First Court event

5.1 In child support proceedings and child maintenance proceedings, each party (other than the Child Support Registrar) must bring the following documents to the first Court event:

  1. a copy of the party's taxation returns for the 3 most recent financial years;
  2. the party's taxation assessments for the 3 most recent financial years;
  3. the party's bank records for the period of 3 years ending on the date on which the application was filed;
  4. if the party receives wages or salary payments – the party's payslips for the past 12 months;
  5. if the party owns or controls a business, either as sole trader, partnership or a company – the business activity statement and the financial statement (including profit and loss statements and balance sheets) for the 3 most recent financial years of the business; and
  6. any other document relevant to determine the income, needs and financial resources of the party.

5.2 Any other party may make a request in writing to inspect the documents mentioned in paragraph 5.1 prior to the first Court event. If requested, the party must produce the documents for inspection within 7 days of receiving the request.

6. Further information

6.1 For information on how family law proceedings are conducted in the FCFCOA, please refer to Central Practice Direction – Family Law Case Management.

6.2 In child maintenance proceedings, please refer to Division 12A of Part VII of the Family Law Act.

6.3 Parties should also consult the FCFCOA website at www.fcfcoa.gov.au for further information about child support and child maintenance proceedings.

 

The Honourable Justice William Alstergren
Chief Justice (Division 1) | Chief Judge (Division 2)
Federal Circuit and Family Court of Australia
Date: 1 September 2021