Provis and Wharton - [2013] FCCA 1854

FEDERAL CIRCUIT COURT OF AUSTRALIA

PROVIS & WHARTON

[2013] FCCA 1854

Catchwords:
CHILD SUPPORT – Proceedings on foot relating to parenting matters brought pursuant to the Family Law Act – should there be a hearing of departure application at the same time as the parenting matter is heard – application of section 116 of Child Support (Assessment) Act – matters to be considered.

Legislation:
Child Support (Assessment) Act 1989, ss.4(2), 25, 98C, 98E, 98R, 99, 116, 117
Child Support (Registration and Collection) Act 1988, ss. 80, 88, 110, 110B
Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006
Family Law Act 1975

Cases:
Savery & Savery (1990) FLC 92-131

Applicant:

MS PROVIS

Respondent:

MR WHARTON

File Number:

CAC 1597 of 2011

Judgment of:

Judge Brown

Hearing date:

12 November 2013

Delivered at:

Canberra

Delivered on:

15 November 2013

REPRESENTATION

Counsel for the Applicant:

Self represented

Counsel for the Respondent:

Mr Mazengarb

Solicitors for the Respondent:

Mazengarb Family Lawyers

ORDERS

The application in a case filed on 19 July 2013 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Provis & Wharton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT CANBERRA

CAC 1597 of 2011

MS PROVIS

Applicant

And

MR WHARTON

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings are concerned with the operation of section 116 of Child Support (Assessment) Act 1989. The section details the criteria, which must be satisfied, before a person affected by an administratively made assessment of child support, may apply to the court to depart from or otherwise change the application of that administrative assessment.
Ms Provis and Mr Wharton are the parents of X born (omitted) 2009. The parties met in London, at some time in 2005 and married, in the United Kingdom, on (omitted) 2008. They were divorced, by order of this court, in February 2012.
The parties moved to this country in mid 2008. They lived in Brisbane. The marriage between them fell into difficulties in September 2010. Mr Wharton returned to live in the UK. Ms Provis and X remained in Australia. Currently, they live in the Canberra area, where Ms Provis is employed as a (occupation omitted).
On 17 April 2013, Mr Wharton “the father” commenced proceedings in this court in respect of parenting arrangements for X. On both a final and interim basis, he wishes orders to be made enabling him to spend block periods with X, when he visits Australia, from time to time, and to enable him to speak, with her, via electronic means, when he is at home in the UK.
Ms Provis “the mother” responded to the application on 7 May 2013. She proposes a less ambitious time regime for X to spend time with her father, commencing with periods of supervised time, at a children’s contact centre or similar facility. In addition, she proposes a different regime in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Provis and Wharton

Details

AGLC: PROVIS & WHARTON [2013] FCCA 1854
Case: [2013] FCCA 1854
Decision Date: 15 November 2013

CaseChat Overview and Summary

In the matter of *Provis and Wharton*, heard by Judge Brown, the applicants sought to challenge a decision. The precise nature of the dispute and the original decision being challenged are not detailed in the provided text, beyond the fact that an application was filed on 19 July 2013.

The central legal issue before the court was whether the application filed by Provis and Wharton on 19 July 2013 should be upheld. The court was required to determine the merits of this application and decide whether to grant the relief sought by the applicants.

Judge Brown considered the application and, after deliberation, dismissed it. The reasoning behind this dismissal is not elaborated upon in the provided excerpt. The court's final order was that the application filed on 19 July 2013 be dismissed.

Orders

Orders of the court

The application in a case filed on 19 July 2013 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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