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.

4.3.6 Appealing ART decisions in court

Context

A party to an ART proceeding may appeal the decision of the ART to a court on a question of law.

A party can also apply to a court for a stay order under the ARTAct. The stay order can stay or affect the operation or implementation of the ART decision or the decision by the Registrar that was reviewed by the ART.

Act references

ARTAct Part 7, section 131V

CSA Act Part 6A, Part 7

CSRC Act section 98D, section 99, section 110V, section 111C

Federal Circuit and Family Court of Australia (Family Law) Rules 2021

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 rule 2.01 Application of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021

Federal Court Rules 2011

Appealing ART decisions

The ARTAct and the CSRC Act set out the courts that 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. An appeal to this court is not available if the ART is constituted by at least one member who is a Judge or a Deputy President of the ART (CSRC Act section 99, ARTAct section 172(1)).

Time limits for appeals

An appeal must be brought within 28 days of receiving notice of the ART decision or within such further time as allowed by the court (ARTAct section 174, Federal Court Rules 2011 and Federal Circuit and Family Court of Australia (Family Law) Rules 2021).

Parties to court proceedings

The parties to a court appeal from a decision of the ART are the people who were the parties to the relevant ART proceeding (CSRC Act section 98D). For guidance on who can be a party to an ART proceeding, see 4.2.5.

Powers of the court

When deciding an appeal, a court can make orders it thinks appropriate (ARTAct section 176), including orders:

  • setting aside the decision of the ART
  • affirming the decision of the ART, or
  • directing the case back to the ART for rehearing, with or without the hearing of further evidence in accordance with the directions of the Court.

A court may dismiss a proceeding relating to an ART decision if it is satisfied that the proceeding is frivolous or vexatious (Federal Court of Australia Act 1976 section 20A, Federal Circuit and Family Court of Australia Act 2021 section 239.

Implementation of a decision

When an objection decision is made, or the ART or the court make a decision, the Registrar must immediately take such action as is necessary to give effect to that decision (CSRC Act section 110V).

Effect of applying to a court from an ART decision

An ART decision continues to have effect from the time it is made and is not affected because a person appeals that decision. The Registrar or the other parent may take action to collect amounts, subject to the effect of a stay order issued by a court under the ARTAct, or the Registrar making a decision not to disburse payments to a payee.

The Registrar may make a decision not to disburse any payments to a payee if a payer has applied to a court challenging the validity of the child support assessment, for reasons other than the parentage of the child concerned, and has requested a suspension of disbursement of payments to the payee. See 5.5.4 for further information about suspending payments to payees.

Stay order under the ARTAct

If an appeal (on a question of law) is instituted in the Federal Court of Australia from an ART decision, the court may make an order staying or otherwise affecting the operation or implementation of the ART decision or the decision by the Registrar that was reviewed by the ART. The stay order is made under section 178(2) of the ARTAct.

For an appeal initiated in the Federal Circuit and Family Court of Australia (Division 2) certain provisions of the ARTAct apply as if the appeal was made to the Federal Court. This includes the power of the court to make a stay order (CSRC Act section 99(3)(c)).

Stay order under the CSRC Act

A court can make a stay order under section 111C of the CSRC Act which stays or otherwise affects the operation or implementation of the CSA Act or the CSRC Act. An application to a court for a stay order under the CSRC Act can be made if:

  • a proceeding has been instituted in a court having jurisdiction under the CSRC Act
    • this does not include an appeal to the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) from an ART decision under the ARTAct (see stay order under the ARTAct, above)
  • an objection is proceeding before the Registrar under Part VII of the CSRC Act
  • a review is proceeding before the ART, other than a proceeding in relation to a guidance and appeals panel application, or in relation to a second review
  • a departure determination is proceeding under Part 6A of the CSA Act, or
  • court review of certain decisions is proceeding under Part 7 of the CSA Act.

A court may make a stay order if it is desirable to do so, taking into account the interests of the persons who may be affected by the outcome of the proceedings.

A stay order has effect for the period specified in the order or, if no period is specified, until the proceeding (decision) of the court, the Registrar or ART, becomes final.

A child support proceeding to which section 111C applies is the process from the time the relevant application is received until the proceeding is finalised.

An objection decision is final if an application for ART review has not been made within the prescribed period. The prescribed period is 28 days for Australian residents and 90 days for residents of a reciprocating jurisdiction (other than an application for ART review of a care percentage decision) (CSRC Act section 90). An ART decision is final if an appeal has not been made within the prescribed period. A decision of a court is final if an appeal is not made within the time allowed for doing so by the relevant court.

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