The Legal Practitioner's Guide

7.2 Suggested draft terms

7.2.1 Stay order pending an objection, SSAT review, court proceedings or Part 6A (arrears amount)

There may be times when you wish to stay CSA's collection of arrears but not the current liability.

• That pursuant to section 111C of the Child Support (Registration and Collection) Act 1988 the collection of child support arrears accumulated up to and including [today's date] payable by [payer's name] to [payee's name] for [child's name] be stayed pending determination of the application made by [applicant's name] on [application date].
• That [payer's name] continue to make payments of [$x per week, fortnight, month, etc] in accordance with the current child support assessment. The amount payable is to be varied in accordance with any later assessments made for any period after [today's date].

7.2.2 Paying a different amount pending proceedings

An applicant may wish to seek an order which stays the current assessment save and except for an amount that will be payable pending finalisation of the substantive matter:

• That pursuant to section 111C of the Child Support (Registration and Collection) Act 1988 the operation of all child support assessments payable by [payer's name] to [payee's name] for [child's name] be stayed pending determination of the application made by [applicant's name] on [application date].

• Whilst the assessments are stayed and from [today's date], [payer's name] shall make payments of child support to [payee's name] of [$x per week, fortnight, month, etc].

7.2.3 Stay order pending objection and a review by the SSAT

The parties may apply for a stay order whilst an application for a change of assessment under Part 6A of the Assessment Act proceeds. If the parties also intend for the stay order to remain in force pending the completion of a subsequent objection and SSAT review, this should be specified in the order.

Suggested additional draft terms:

Such stay shall remain in force pending finalisation of an objection and SSAT review to the Part 6A determination.

7.2.4 No payments pending proceedings

• That pursuant to section 111C of the Child Support (Registration and Collection) Act 1988 the collection of child support payable (current liability and arrears) by [payer's name] to [payee's name] for [child's name] be stayed pending determination of the application made by [applicant's name] on [application date].

7.2.5 Tips and problems

There must be proceedings on foot
In order to apply for a stay order under section 111C of the Registration and Collection Act there must be a proceeding on foot, such proceeding being either an objection, a change of assessment application (Part 6A), an application for review in the SSAT or a court proceeding in a court having jurisdiction under the Registration and Collection Act or the Assessment Act. Proceedings are not limited to proceedings under the Registration and Collection Act. There simply needs to be proceedings instituted in a court that has jurisdiction under the Registration and Collection Act, rather than proceedings instituted under the Registration and Collection Act (section 111C(1)(a)). This means that Family Law proceedings in the Federal Magistrates Court or the Family Court could enable an application for a stay order to be made. However this would only be appropriate where it was considered that the court proceedings had relevance to the payment of child support. For example, where an adjustment of equity is being sought in a property settlement proceeding in favour of a child support customer.

How long does a stay order remain in force?
Unless it states otherwise, a stay order under section 111C of the Registration and Collection Act operates until the decision of the court determining the proceedings becomes final, or CSA has finalised the objection, or the SSAT has finalised its proceedings (section 111C(5)(b)). Under section 110W(1) an SSAT decision is finalised at the end of the period within which an appeal can be made to a court and an application has not been made within that period. Under section 110W(2) and section 110W(3) a decision of a court becomes final at the end of the period within which an appeal can be made to a higher court and an application has not been made within that period.

CSA should be served
Generally CSA need not be a party to an application for a stay order but must be served with a copy of the application (Federal Magistrates Court Rules, Rule 25A.07) and (Family Law Rules 2004, Rule 4.23).

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