Penman & Child Support Registrar & Anor

In the matter of *Penman & Child Support Registrar & Anor*, Watts J of the Federal Circuit Court of Australia considered an application by the father for a departure order under s 118(1)(b) of the *Child Support (Assessment) Act 1989* (Cth) to vary earlier administrative assessments for child support in respect of the parties' three children. The Child Support Registrar opposed the application, arguing that the father's continued pursuit of the matter constituted an abuse of process, as he had already exhausted available remedies through the usual channels.

The court was required to determine whether the father's application was an abuse of process, and if not, whether leave should be granted under s 112(1) of the Assessment Act for the application concerning the eldest child. Further, the court had to consider the merits of the father's application for departure orders, specifically in relation to the eldest and youngest children, and whether any such orders would be just and equitable and otherwise proper under s 117(4) of the Assessment Act, given that the sole ground relied upon was s 117(2)(b)(ii). The court also considered the question of costs.

Watts J found that the father's application was indeed an abuse of process, as it represented an attempt to re-litigate issues already determined. Consequently, leave was not granted for the part of the application relating to the eldest child, and any potential backdating of orders was limited to 18 months prior to the application. The father's application concerning the youngest child was dismissed as it did not alter the current assessment and was therefore nugatory. The remaining applications, relating to the eldest child from January 2012 to April 2014 and the middle child from January 2013 to April 2014, were dismissed because the basis for the mother's consent to boarding school arrangements, which was the payment of costs by the father or paternal grandmother, meant that the ground for departure under s 117(2)(b)(ii) did not arise. Furthermore, the court concluded that it was neither just and equitable nor otherwise proper to make the departure orders sought, particularly in light of the abuse of process.

The father's application was dismissed in its entirety. The court also ordered the father to pay the Registrar's costs of the application on a party/party basis, finding that his financial circumstances did not preclude such an order and that the Registrar ought not bear the costs of defending an unreasonable attack.