The Guides to Social Policy Law is a collection of publications designed to assist decision makers administering social policy law. The information contained in this publication is intended only as a guide to relevant legislation/policy. The information is accurate as at the date listed at the bottom of the page, but may be subject to change. To discuss individual circumstances please contact Services Australia.

4.3.1 Overview

Context

In some circumstances a parent may apply directly to a court if dissatisfied with some Registrar decisions made under the CSA Act and the CSRC Act. In other cases a parent may be able to appeal to court following a decision of the ART.

On a direct application, the court may make a range of orders affecting the child support case, including orders under the FL Act. Where an application was based on an appeal from the ART on a question of law, the court may make orders about how the ART should reconsider the decision.

Act references

CSRC Act

CSA Act Part 7

ARTAct

Administrative Decisions (Judicial Review) Act 1977 (ADJR Act)

Court applications & orders

In some circumstances, a parent can apply directly to a court if they are dissatisfied with a decision made by the Registrar under the CSA Act or the CSRC Act. It is usually necessary for the Registrar to have dealt with an objection about the decision before the parent can make their court application.

A court dealing with a parent's application under the CSA Act or CSRC Act must have jurisdiction to deal with child support matters under those Acts. Courts with jurisdiction include:

  • Federal Circuit and Family Court of Australia
  • State and Territory Courts of summary jurisdiction
  • Family Court of Western Australia
  • Supreme Court of the Northern Territory.

The court may make other orders affecting a child support case that are detailed in 4.3.2 and 4.3.6, including orders about child support agreements, stay orders and orders against a payee for the repayment of overpaid child support.

The court may also make some orders under the FL Act that will affect a child support assessment. These include orders relating to care of a child.

The ADJR Act provides that a parent may apply to the Federal Court of Australia and the Federal Circuit and Family Court of Australia (Division 2) for a review of any decision made by the Registrar, except for change of assessment decisions under Part 6A of the CSA Act. Applications under the ADJR Act relate to whether the Registrar has properly made the decision according to law. The court cannot review the merits of the decision (4.3.7).

In certain circumstances a parent can also apply directly to a court for a change to their child support assessment because of special circumstances (CSA Act section 116). 

Court appeals of ART decisions

The ARTAct and the CSRC Act set out the courts which a person may appeal to from a decision of the ART. These are the Federal Court of Australia and the Federal Circuit and Family Court of Australia (Division 2).

A party to a proceeding in the ART may appeal to the Federal Court of Australia on a question of law from the decision of the ART (ARTAct section 172).

A party to a proceeding in the ART may choose to appeal to the Federal Circuit and Family Court of Australia (Division 2) on a question of law from the decision of the ART. This type of appeal is not available if the ART is constituted by at least one member who is a Judge or Deputy President of the ART (CSRC Act section 99, ARTAct section 172(1)). An appeal to the Federal Court of Australia is still available in those circumstances.

At the request of a party to the proceeding or on its own initiative, the ART may, with the agreement of the President, refer a question of law arising in a proceeding to the Federal Court of Australia for decision. Where this occurs, the ART must not make a decision in that proceeding to which the question of law is relevant while the court’s decision is pending. Following the court’s decision, the ART cannot proceed or make a decision that is inconsistent with the court’s opinion on the question (ARTAct section 185).

A decision of the President of the ART to refer or not refer a decision of the ART to the guidance and appeals following an application from a party to the decision is not a decision of the ART and cannot be appealed to court on a question of law (ARTAct sections 123, 128 and 172(2)).

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