Provis and Wharton

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 respect of electronic communication.
These proceedings are as yet unresolved. On 7 June 2013, Judge Brewster made orders authorising Mr Wharton to communicate with X, via Skype, on each Wednesday and Sunday. It is anticipated that, if not resolved before hand, the parties’ competing applications will be fixed for final hearing in 2014. The father will travel to Canberra to take part in the hearing.
Issues in respect of the provision of ongoing financial support for X have long been vexed between the parties. In addition, the issues have been further bedevilled by the distance between the UK and Australia and the parties’ current extreme antipathy for one another.
In Australia, the financial support, to be provided by parents to their children, is determined by reference to a scheme inaugurated by two pieces of interrelated legislation. Firstly, the Child Support (Assessment) Act 1989 (the “Assessment Act”) and secondly, the Child Support (Registration and Collection) Act 1988 (the “Registration and Collection Act”).
These complex pieces of legislation are supported by other legislation, relating to social welfare payments, taxation matters and the like. In addition, Australia has entered into a number of agreements, with other countries, including the United Kingdom, relating to the collection of maintenance for children, in cases where a parent lives overseas. In the terminology of the legislation, the UK is a “reciprocating jurisdiction”.
In broad terms, the child support regime creates a mechanism for the financial support, to be provided by parents for their children, to be calculated administratively, through the application of a legislatively prescribed formula. This formula is based on a number of elements, primarily related to the respective incomes of the parents themselves and the extent of care, which each provides to any child concerned.
In this context, it is useful to set out the objects of the Assessment Act. They are to be found in section 4(2) of the Act and are as follows:
a)that the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support; and
b)that the level of financial support to be provided by parents for their children should be determined in accordance with the costs of the children; and
c)that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings; and
d)that children share in changes in the standard of living of both their parents, whether or not they are living with both or either of them; and
e)that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.
The objective that the level of child support, payable by parents for their children, should be readily determined is, at least in part, achieved by the application of the child support formula to the circumstances of the parents concerned. The formula itself is informed by regular statistical research, undertaken by agencies of the Australian Government, relating to the actual costs of provided for children, within the context of wages paid to average salary earners within Australia.
The intention of the legislature is that the formula should be transparent and provide fairly for the financial support of children, based on an objective assessment of their needs. The formula is also intended to be responsive to the care provided, by separated parents, for their children.
Pursuant to section 25 of the Assessment Act, separated parents, of a child living in Australia, may apply to the Registrar of the Child Support Agency for an administrative assessment to be made in respect of the child concerned.
Obviously X lives in Australia, as does her mother, who is her principle provider of care. Accordingly, Ms Provis is entitled to make an application for a child support assessment, in respect of X, in respect of her and Mr Wharton’s circumstances, given that he, although resident outside of Australia, lives in a reciprocating jurisdiction.
It is common ground between the parties that the mother has applied for a number of such assessments, in respect of X. Most recently, on 24 June 2013, the Registrar issued an assessment, for X, which required Mr Wharton to pay Ms Provis a monthly amount of $105.75. The period of the assessment was from 1 July 2013 to 31 January 2014.
The assessment was based on a child support income of approximately $86,000 for Ms Provis and an estimated income of $11,368 for Mr Wharton. Given that Mr Wharton lives in the UK and has not spent time with X for a significant period, Ms Provis’ care percentage, for X, was assessed at 100%.
In spite of the good intentions of the Australian Government, the application of the child support formula remains controversial, particularly amongst separated parents. In addition, the potential for human circumstances to throw up situations not readily anticipated by the various child support formulae, created by the legislation, remains infinite.
In these circumstances, the legislature has created a process, through which a person aggrieved by any administrative application of the formula, in any of its intricacies, may apply to the Registrar to depart from that formula. However, this right of review is only available in certain stipulated circumstances.
The grounds for an administrative departure are set out in Part 6A of the Assessment Act, primarily in section 98C. This section provides three basic criteria, which must be satisfied, before the Registrar may decide to depart from an administrative assessment of child support.
In the first instance, the Registrar must be satisfied that one, of a number of stipulated grounds for departure, is satisfied. Amongst other things, these grounds including the following: any special needs of the child concerned; the manner agreed upon by the parents of educating the child concerned and the financial implications flowing from any such agreement; and, relevantly in this case, the income, property, financial resources or earning capacity of a parent, which is not properly reflected in any child support assessment arising.
Secondly, the Registrar must be satisfied that it is both just and equitable, as regards the child, the carer of the child and the parent liable to pay child support, to depart from the applicable administrative assessment and finally, it is otherwise proper to do so.
In certain circumstances, particularly if the Registrar determines that the matter is of a complex nature, the Registrar may refuse to make a determination. [See section 98R of the Assessment Act].
Pursuant to provisions contained in the Registration and Collection Act, a person may lodge an objection, with the Registrar, to any decision arising from the departure process, which is created by Part 6A of the Assessment Act.
Lawyers categorise this objection process as being an independent but internal method of administrative review. The objections process is mandated by section 80 of the Registration and Collection Act.
Thereafter, any person who remains, aggrieved following this objection process, may further appeal to the Social Security Appeals Tribunal “the SSAT”. The process of appeal to the SSAT provides a de novo hearing process. That is the SSAT is authorised to gather evidence and make findings of fact.
Pursuant to section 88 of the Registration and Collection Act, the SSAT is directed to provide a mechanism of review, of child support decisions, which is fair, just, economical, informal and quick. Lawyers categorise the SSAT process as being an independent and external source of administrative review.
It is only in limited circumstances that an appeal can be successfully lodged, with the court, from a child support decision of the SSAT. Pursuant to section 110B of the Registration and Collection Act, the only appeal to the court, from a decision of the SSAT, arises in respect of a question of law.
That is an appellant, in a decision from the SSAT, must satisfy the court that a jurisdictional error has occurred in respect of the application, by the SSAT, of any applicable legal principle.
Accordingly, an appeal on a question of law is different in nature from the de novo hearing process provided by the SSAT, as it is only in limited circumstances, that the court, in such an appeal process, is able to make findings of fact.
In summary, the legislature has provided a process for the administrative review of child support decisions, involving two separate levels of review within the Child Support Agency itself, which culminates in an external appeal process, involving the gathering of evidence and the making of any prerequisite findings of fact, under the auspices of the SSAT. The fundamental underpinning of the regime being that it is cheap to access; informal; yet remains fair.
Fundamentally, the review process, in respect of child support decisions, is to be largely quarantined from any judicial involvement. It is only when the review process become vitiated through legal error that judicial oversight becomes available to correct such error. This level of oversight arises at the end of the process rather than at any initial or intermediary stage.
The regime, as outlined, is informed by the legislature’s desire that issues relating to the financial support, to be provided by parents, for their children, should be readily determined, without the need for those parents to have resort to court proceedings, which have the potential to be expensive, both in financial and emotional terms. In this regard, reference is again made to the objects of the child support regime as outlined in section 4(2) of the Assessment Act.

The current proceedings

On 19 July 2013, Ms Provis filed an application in a case, in which she sought that, pursuant to section 117 of the Assessment Act, there be a departure, from the administrative assessment of child support, applicable to X, for the period from 1 July 2013 onwards, the effect of which would be that Mr Wharton would be assessed to pay her the sum of $400 per month, by way of child support, for X.
In addition, she wished the court to make an order that Mr Wharton pay her all current arrears of child support, arising from previous assessments of child support. A sum which she calculated to be $1,992.49. She sought that the arrears be paid within 28 days of the order sought by her being made.
Mr Wharton responded to the application on 3 September 2013. It is his position that Ms Provis’ application should be dismissed summarily. Essentially it is his position that, as Ms Provis has not exhausted her avenues of administrative appeal, arising under the child support regime, it would be both oppressive and unfair to him and a subversion of the legislature’s intention that the court not be involved in the administrative process, if her application is allowed to proceed.
In addition, although not stated as such, I take it that it is his position that both Ms Provis and indeed the Registrar of the Child Support Agency have other mechanisms available to them to recover arrears and these mechanisms should be engaged.
Both parties have filed affidavits, in support of their respective positions. At this interim stage, I am not in a position to make findings of fact in respect of many issues currently in contention between the parties. It is however necessary to summarise the respective contentions of the parties.
It is common ground that Mr Wharton is a (occupation omitted). In this context, it is Ms Provis’ position that Mr Wharton operates a business, in the UK, known as (omitted) Pty Ltd, which is a vehicle for Mr Wharton to pursue his career. He and his current partner are directors of the company.
Ms Provis asserts that the company is a device to split the income derived by Mr Wharton from (omitted) Pty Ltd in order to minimise his child support income. In these circumstances, she does not accept the estimate of income, which Mr Wharton has provided to the Child Support Agency, on which the current administrative assessment is based.
Mr Wharton confirms that he derives his income through working as a (occupation omitted). He further concedes that he owns and runs (omitted) Pty Ltd. It is his position that currently he pays himself £641 per month, which equates to A$1,081.00. This is the basis of the estimate of income, which he has provided to the Child Support Agency.
Ms Provis has accessed Mr Wharton's Facebook page for the business. It is her view that the business is doing well. In these circumstances, she does not accept that Mr Wharton’s estimate of income equates to $11,368 per annum. Therefore, she asserts that the applicable child support assessment is based on a false assumption.
In addition, Ms Provis asserts that Mr Wharton enjoys a lifestyle, including frequent overseas holidays, which is not congruent with his current, self-asserted modest level of income. Essentially, it is her position that the current assessment is unfair to her because it does not properly reflect either Mr Wharton’s income or his capacity to earn.
In the past, both Ms Provis and Mr Wharton have availed themselves of the departure and objections process, provided by the relevant child support legislation, as outlined above, in respect of child support assessments made for periods prior to 1 July 2013. Some of those assessments have relied on a higher child support income for Mr Wharton.
Ms Provis concedes that she made such an application in April 2011. To which Mr Wharton subsequently objected. Ms Provis concedes that his objection was upheld in part. Accordingly, it cannot be said that either party is unfamiliar with the legislatively mandated process of administrative review of child support decisions.
I have not been provided with any of the relevant decisions relating to either the change of assessment or subsequent objections process. It is however Ms Provis’ assertion that Mr Wharton provided false and misleading information to the Child Support Agency during the administrative processes preceding these various decisions.
More recently again, in respect of earlier decisions and objections, occurring within the administrative structure of the Child Support Agency, Ms Provis has initiated an appeal to the SSAT. However, Ms Provis concedes that she withdrew her appeal because of a text message, sent to her by Mr Wharton, which upset her.
It is Ms Provis’ contention that Mr Wharton’s earning capacity is somewhere in the vicinity of $57,000 per annum. Mr Wharton rejects this contention and asserts that the estimates he has provided to the Agency are correct. I am not able to resolve this fundamental evidentiary issue at this stage.
Mr Wharton’s solicitor, Mr Mazengarb, categorises the current assessment as being provisional in nature, submitting that, if subsequent events show Mr Wharton’s estimate to be incorrect, the relevant assessment can be amended and arrears calculated. Essentially that the current assessment was not inherently prejudicial to Ms Provis.
Mr Wharton visited Australia in early 2013. At the time of his visit, there were apparently arrears of child support outstanding in respect of earlier assessments of child support. As a result of powers available pursuant to the applicable legislation, the Registrar prevented Mr Wharton from leaving Australia to return to the United Kingdom until the arrears had been satisfied. A payment schedule was apparently arranged, which was satisfactory to the Registrar.
It is apparent to me, from reading the parties’ respective affidavits, both in respect of child support matters and issues relating to X, that the parties neither trust nor particularly like one another. This state of affairs is regrettable, but hardly unusual both in respect of matters coming before the court and arising in review processes within the Child Support Agency and the SSAT.
Ms Provis has acted on her own behalf, in respect of the child support aspects of the case, recently raised by her. It is my understanding that she has not sought to review the most recent administrative decision, arising from Mr Wharton’s estimate of income.
Rather, she has initiated the departure application, in conjunction with the proceedings originally initiated, by Mr Wharton, in respect of parenting arrangements for X.
It is in this context that the court’s consideration of section 116 of the Assessment Act arises. The relevant section reads as follows:
(1)A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
(a)    all of the following apply:
(i)     the Registrar has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment;
(ii)    an objection to the refusal has been lodged;
(iii)   the Registrar has disallowed the objection; or
(aa) all of the following apply:
(i)a decision has been made in respect of the administrative assessment;
(ii)    an objection to the decision has been lodged;
(iii)   in making a decision on the objection, the Registrar has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment; or
(ab)the SSAT has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment; or
(b)both of the following apply:
(i)the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii)the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; or
(c)in the case of a liable parent--the administrative assessment of child support payable by the liable parent for the child is made under subsection 66(1).

It is my understanding that, at earlier mentions of the matter, before other judges of the court, the issue of section 116 has been raised with Ms Provis and she has been asked to consider her position. The matter now falls to me to determine. It is Mr Wharton’s position, as advanced by Mr Mazengarb, that it is not in his client’s interests for the administrative review regime, provided for by the legislation, to be dispensed with in this case.

Conclusions

As previously indicated, Ms Provis appeared to argue this matter on her own behalf. She is an intelligent and determined person. I do not doubt her motivation in pursuing the matter determinedly or that she desires anything other than to ensure that X receives a proper level of financial support.
From her perspective, there are pragmatic considerations, which render it appropriate that the child support aspects of the case be finalised in tandem with any hearing of the court directed to resolving the issues relating to Mr Wharton and X spending time together.
These are readily understandable concerns, directed, at least in part, towards the desirability of avoiding a duplication of proceedings and achieving a situation whereby the child support issues can be determined finally, when Mr Wharton is physically in Australia.
However, the real import of Ms Provis’ concerns relates to her implied assertion that the administrative review process will be in some way inadequate to resolve the issues raised by her or that its processes will be in someway unfair to her. For these reasons, she wishes to by-pass the review process, which the legislature has mandated.
I am not satisfied that these concerns are consistent with either the provisions of section 116(1) or the ethos of the overall child support scheme. As previously indicated, in my view, the various provisions to which reference has been made, eschew the involvement of the court, in the application of the child support formula to parents, except in circumstances closely prescribed by the legislature.
The rationale for the exclusion of the court, from the process of review, is readily explicable in light of the objects as outlined in section 4 of the Assessment Act. Court proceedings, regarding child support assessments, should be the exception rather than the rule. This is particularly so, since the inauguration of the external level of appeal, in child support matters, provided by the SSAT.
The instigation of appeals to SSAT, in child support matters, was part of a wide ranging reform of the child support system inaugurated by the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (the “Reform Act”). The SSAT is intended to be a specialist tribunal, dealing with child support matters, in preference to a court such as this one.
The relevant portion of the Explanatory Memorandum, published in support of the Reform Act, indicates that it:
…introduces review by an internal external body, the Social Security Appeals Tribunal, of child support decisions which have been reviewed under the Child Support Agency’s internal review procedure. The purpose of introducing this is to provide external review mechanism which is faster, less formal and less expensive than court action, while still providing just and fair outcomes. …It is an inquisitorial, rather than an adversarial process, which may assist in reducing tensions between separated parents when resolving child support issues.
…
Parents…may appeal a decision of the SSAT to a court on a question of law. Parents can still appeal to the courts, in a number of situations. These are applications about the making of assessments requiring parentage declarations, applications to terminate an agreement, applications for child support in non-periodic form. Applications for urgent child support pending the making of an assessment, and applications for a departure in some limited circumstances, such as where the decision is too complex to be finalised administratively, or the applicant seeks to vary a child support assessment from more than 18 months ago.[1]
[1] See Explanatory Memorandum at page 89

The important matter to note, in my view, is that departure applications are to be heard by the court in what are categorised as being limited circumstances, given the desirability of such issues being determined in a manner characterised as being less adversarial, whilst, at the same time, remaining fair.
In addition reference is made to the expense, for parents, of utilising court procedures and for the potential of court cases to add a further level of irritation, in what are often already inflamed parental relationship.
It is in this context that section 116 of the Assessment Act must be considered. This section also has had its most recent genesis in the reforms initiated the Reform Act of 2006. Again, in my view, it is instructive to have regard to the relevant Explanatory Memorandum.
The relevant portion reads as follows:
Because the SSAT will be established in order to review many matters…direct applications to the court will be limited…the person must first go through the internal review process…[however]
… if there are other matters before the court that involve one or the other of the parents, for example family law or bankruptcy matters, then the parent can ask the court also to consider the child support matter, without first going through internal review. The court may consider whether to hear the child support matter together with the other matter. If the court chooses not to hear the child support matter, the parent must go through the internal review processes.[2]
[2] Ibid at pages 140-141
Ms Provis has alluded to the possibility that the Registrar may deem this matter unduly complicated. However she has adduced no evidence to support this contention. In addition, in respect of previous applications, made to it by both the father and the mother, the Registrar has not taken such a position.
Accordingly, at this stage, I am satisfied, in this case, that the Registrar has not refused to make any relevant determination, in the exercise of its administrative assessment under Part 6A of the Assessment Act. Further, I am satisfied that the objection process, arising under the Registration and Collection Act has not been as yet been engaged by either party and, as a consequence, the possible engagement of the processes available in the SSAT remains contingent.
The only basis on which Ms Provis can proceed with her departure application is provided by section 116(1)(b). I accept that both Mr Wharton and Ms Provis are parties in an application relating to a matter arising in the jurisdiction of this court, which is currently pending before it [see Assessment Act at section 99]. The proceedings relate, of course, to X, and arise under Part VII of the Family Law Act, the part of the Act dealing with arrangements for children.
This is not a matter of a type to which reference has been made in the Explanatory Memorandum relating to the Reform Act. It is not a matter of a purely financial type. Nor can it be characterised as a matter of particular urgency, which arises pending the making of an assessment. It is a matter where there is an assessment, albeit a controversial one, arising from an estimate of child support income, which necessarily is provisional in nature.
The most common basis, on which the court proceeds to make a departure order, without there having been formal adherence to the administrative review process, is where there is application for a lump sum payment of child support, which arises in conjunction with the settlement of either matrimonial or de-facto property proceedings. This type of matter was identified in the relevant Explanatory Memorandum.
In such cases, it is very often in the interests of all concerned that issues of future lump sum payments of child support be determined, within the context of other property proceedings, which are likely to result in the reallocation of significant sums of capital between the parents concerned.
That is not the case in this matter. There are no proceedings, of a financial nature, on foot between the parties, in this court. The pending case does not have the potential to raise issues to do with lump sum child support. The pending case relates to parenting matters only, particularly issues relating to Mr Wharton spending time with X and communicating with her.
In addition, X is four years of age. It is probable that the financial circumstances of both parties will changed significantly over the course of X’s childhood. In such circumstances, it is likely to be desirable, for all concerned, including the child, that any recurrent administrative assessment of child support be responsive to such changes in circumstances.
The mere existence of other proceedings, in a court of appropriate jurisdiction, is not, in my view, sufficient to ground the court’s jurisdiction to make a departure order. There must be a more significant nexus between the two pieces of prospective litigation, which justify the circumvention of the less formal and necessarily cheaper review processes mandated by the applicable legislation.
It is for this reason, in my view, that the relevant provision directs that the court must also be satisfied that it is in the interests of all concerned, for it to engage in a departure process in all the special circumstances of the case. There must be more at stake than mere expediency or convenience from the perspective of one party only.
In this case, Ms Provis seeks a review of an administrative child support determination, on the basis that it does not reflect Mr Wharton’s true financial circumstances. In lieu thereof she seeks that the court make an open-ended and indefinite assessment of child support in the place of any recurrent administrative assessments, which may issue, from the Registrar, from time to time, in the light of any changing circumstances.
I am not persuaded, at this juncture, that such an outcome is necessarily likely to be in the interests of X herself. It is trite, but true nonetheless, that the financial circumstances of both parties cannot be predicted for the next few years, let alone the next fifteen or so.
In addition, I do not think that the current circumstances, as outlined by the parties, amount to special circumstances. In Savery & Savery[3] Kay J held that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases…”.
[3] Savery & Savery (1990) FLC 92-131
In my view, the matters raised by Ms Provis vis-à-vis Mr Wharton represent a fairly commonplace scenario in respect of child support matters. In addition, the assessment remains provisional in nature and subject to revision in the future.
As such, I do not consider it to be in the interests of either Mr Wharton or X for the court to deal with Ms Provis’ departure application at this juncture. Certainly not before there has been an exhaustion of the applicable administrative mechanisms for review, including potentially under the aegis of the SSAT.
Ms Provis has elected not to avail herself of review opportunities, available to her under the relevant legislation, which are designed to be cost effective and efficient. Rather, she assumes that the processes are likely to be weighted against her and that any decision reached by them will necessarily be wrong because Mr Wharton will, in some way, be able to subvert the review system. Apart from her contentions, in this regard, she has provided no evidence to support her concerns.
The court process has the potential to be expensive, not only for Ms Provis, but also for Mr Wharton. Apart from the fact that she has been dissatisfied with previous decisions made administratively, I can find no rational to support Ms Provis’ contention that it is in her interests for the departure application to be dealt with by the court.
Certainly I do not think that it would be in keeping with the public policy considerations lying behind either section 116 or the child support scheme overall, if the court was to accede to Ms Provis’ application at this stage, prior to the exhaustion of the cheaper, less formal mechanisms available within the Child Support Agency and external to it in the SSAT.
I accept that the amount of arrears stipulated by Ms Provis has the potential to provide significantly for X. However, in all the circumstances of this case, I believe it is premature to bring the matter before the court.
From Mr Wharton’s perspective, he is fearful that, if the court accedes to Ms Provis’ application, there is the possibility that he will have to deal with more than one piece of litigation in the court, which will put him to unnecessary expense.
In my view, this is just such a scenario, to which the reforms inaugurated in 2006 are to be directed. I do not dismiss Mr Wharton’s concerns in regard to the potential for the proceedings to become expensive for him.
In all these circumstances, I have come to the conclusion that it is not appropriate for the court to either tacitly or actively undermine the administrative review process enshrined in both the Assessment and Registration and Collection Acts. For these reasons, I have determined that the mother’s application should be dismissed.
For all these reasons, the order of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 15 November 2013

[2013] FCCA 1854

15 November 2013

Key Legal Topics

Areas of Law

Civil Procedure

Legal Concepts

Jurisdiction