ENU24 v ENV24
[2025] FedCFamC2G 817
•30 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ENU24 v ENV24 [2025] FedCFamC2G 817
File number(s): SYG 1502 of 2024 Judgment of: JUDGE STREET Date of judgment: 30 May 2025 Catchwords: CHILD SUPPORT – Amended Notice of Appeal dismissed – increase in child support payment – applicant pay first respondent’s costs Legislation: Administrative Review Tribunal Act 2024
Child Support (Assessment) Act 1989 (Cth)
Division: Division 2 Family Law Number of paragraphs: 47 Date of hearing: 5 May 2025 Place: Sydney Solicitor for the Applicant: Mr E of E Law Firm For the First Respondent: The First Respondent appeared via video/audio link Solicitor for the Second Respondent: Mr K Eskerie of Sparke Helmore Lawyers For the Third Respondent: The Third Respondent did not appear ORDERS
SYG 1502 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ENU24
Applicant
AND: ENV24
First Respondent
CHILD SUPPORT REGISTRAR
Second Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Third Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
5 MAY 2025
THE COURT ORDERS THAT:
1.The amended notice of appeal is dismissed.
2.The Court orders the applicant to pay the first respondent's costs fixed in the amount of $8000 within 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 110X(4)(h) of the Child Support (Registration and Collection) Act1988 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in child support review proceedings.
IT IS NOTED that publication of this judgment under a pseudonym is approved pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
This is a purported appeal by the applicant father (“the father”) against a decision of the Administrative Appeals Tribunal (“Tribunal”) in the Social Services and Child Support Division made on 29 May 2024. The decision by the Tribunal, on that date, set aside the administrative decision under review and substituted a decision that raised the father's annual rate of child support by $3850 for the period 20 April 2023 to 19 April 2024, and the Tribunal adjusted the father's taxable income to be varied to:
·$82,524 for the period 20 April 2023 to 31 December 2023;
·$85,389 for the period 1 January 2024 to 31 December 2024;
·Adjustable taxable income of $85,389 inflated by the September 2024 Sydney consumer price index is to be applied to the administrative assessment from 1 January 2025 to 31 December 2025; and
·The adjusted taxable income that applied to the administrative assessment from 1 January 2025 to 31 December 2025 inflated by the September 2025 Sydney consumer price index is to be applied to the administrative assessment from 1 January 2026 to 31 December 2026.
The grounds in the amended notice of appeal are as follows:
1.The decision is affected by apprehended bias.
Particulars
a.The Tribunal questioned the Applicant (father) at length and in detail but did not question the Respondent (mother) to the same degree.
1.The Tribunal refused to adjourn the matter to allow the older child to undergo a psychological assessment to determine with which parent she will live, after the older child recently decided to live with the father after an apparent altercation with the mother. [43]
11.The Tribunal was required to, by section 98C(ii)(A), consider what was "just and equitable as regards, the liable parent, and the carer entitled to child support".
111.Such a consideration would obviously include where each of the children would be living.
b.The Tribunal found that the Applicant (father) could have owned [B Pty Ltd] when he was an undischarged bankrupt and could, therefore, not have an ownership interest, or be a director of, any business.
2. The Applicant (father) was denied procedural fairness.
Particulars
a.The Tribunal questioned the First Respondent (mother) when the Applicant (father) was not present.
3. The Tribunal failed to give genuine and realistic consideration to the evidence.
Particulars
a.The following question and answer were given by the Tribunal and First Respondent, Transcript p 23 line s6 - 29
SENIOR MEMBER: Yes. Yes. Okay. Just give me a moment. All right. I guess my next question for you then, [ENV24], is what impact has it had on your capacity to meet the children 's needs in meeting that fit!! braces payment?
[ENV24]: Look, day-to-day it hasn't had an impact because I have that money sitting in surplus, so I used those funds to pay for her braces. Day-to-day needs are met by my income alone, and what I receive in family tax payments, and on the odd occasion when I do receive some child support payments, they help me with day-to-day needs. So the payments of the braces shouldn't affect me, yes, financially supporting the children on a day-to-day basis.
SENIOR MEMBER: Remember I pointed out to [Mr E] that that's not the legal test. It says significantly affected the costs of maintaining the children, so not day-to-day.
[ENV24]: Okay.
SENIOR MEMBER: So has it had any impact on anything else?
[ENV24]: No. I guess the only impact it has is that the balance has been reduced, so with regards to the kids, no, there's been no impact.
b. The Tribunal found, at para 35;
"The Tribunal is satisfied that the older child's special needs reduced the capacity of the mother to provide financial support to the older child and her siblings. Therefore, in the special circumstances of the case, the costs of the older child are significantly affected because of her special needs"
c.This finding is at odds with, and fails to take account of, the evidence of the mother actually given.
4.Was there a constructive failure on the part of the Third Respond to exercise its jurisdiction
Particulars
a.Section 117(2A)(a), permits the Third Respondent to consider the financial circumstances of each party, which is expressly limited to their capacity to earn and derive income from assets under their control or held for their benefit (emphasis added). Decision record [70]; [72]; [111
b.The Third Respondent misapplied the law in her finding that the Applicant's financial capacity can include a capacity to derive income from assets not held for his benefit nor held under his control.
c.The Third Respondent considered information it was required to disregard under Section 117(7A)(b)(i). Charity to the Respondent is distinct to income and is a matter for the giver whether to give, not the receiver to expect or treat as a promise. Transcript page 55 line 43 - page 56 line 1 - 23. Decision record [47];
d.The Third Respondent should have rejected the Respondent's criticism of the Applicant's evidence regarding his financial position which was supported by the Tax Return, bank statement, and objective market data.
e.Section 117(2) limits the meaning of income to the income, property and financial resources of either parent, earning capacity of either parent, and expressly excludes financial assistance from external parties. Financial assistance by third parties on charitable terms is not income not capacity to derive income.
f.Non-recurring gifts or voluntary contributions from a third party cannot be treated as being in the capacity of anyone but the giver; certainly not the receiver of the gift or charity.
g.Section 117(7A)(b)(i) expressly requires the Third respondent to exclude
h....the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a pa1iy to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them.
I. Section l l 7(l)(b)(i) requires, before a valid departure order can be made, that the decision maker be satisfied that one or more grounds for departure must exist. By considering a fact that does not exist on any probative basis, being the Applicant's ability to derive income above the provided ATO assessed income, the Third Respondent did not meet the necessary precondition under Section l l7(l)(b)(i) for the valid exercise of the statutory power.
J.The Third Respondent failed to reach the prescribed state of satisfaction required to make a departure order due to considering a fact that does not exist on any probative basis, specifically the significantly changed capacity of the Respondent to provide financial support for the child, the special needs of any other child or another person that the parent has a duty to maintain, and Applicant's ability to derive income above the provided ATO assessed income. Having failed to accept the evidence of the Respondent that the circumstances to consider a departure order of not exist, the Third Respondent did not have the jurisdiction to consider further questions or make a departure order.
k.The Third Respondent should have stopped at Section 117(2)(a) as the evidence given by the Respondent is that there was no significant change.
I.The jurisdictional facts enlivening the power to make the departure order were not shown to exist, given the failure of the Third Respondent to accept the evidence of the Respondent that her capacity to provide financial support for the child was not significantly reduced due to the cost of orthodontic treatment for the eldest child.
The right to invoke this Court's jurisdiction must involve a question of law under section 172 and 179(4) of the Administrative Review Tribunal Act 2024. Whether the appeal raises a question of law is a jurisdictional matter, about which the Court must be satisfied regardless of whether there is a challenge to jurisdiction in this respect. While the Court accepts there is force in the proposition raised by the second respondent, that the grounds in the notice of appeal do not raise any proper question of law engaging this jurisdiction, on balance the Court finds that the framing of the questions is sufficient to engage this Court's jurisdiction by raising a question of law, as formulated in the amended notice of appeal.
The father and the first respondent mother (“the mother”) are parents of three children. The first born in 2008, the second born in 2010 and the third born in 2012. The Court notes a child support case was first registered on 8 September 2014. On 12 April 2023, a child support assessment was amended to reflect the father's adjusted taxable income of $34,908 as assessed by the ATO for the period 1 October 2022 to 31 December 2023. The mother's adjusted taxable income remained $60,852. Due to the change of the father's adjusted taxable income and his care being reflected in the assessment at 20 per cent care of the children, there was no child support payable for this period.
On 20 April 2023, the mother lodged an application for departure from the administrative assessment under reason 8B. The mother sought, from 1 July 2021, the annual rate of child support payable by the father be reinstated to $23,280 per year. On 31 May 2023, the mother lodged a second application seeking departure from the administrative assessment under reasons 2 and 8A. On 1 June 2023, the mother confirmed that she intended to proceed with the two applications.
On 25 July 2023, Services Australia, the agency, applied updated incomes for the applicant father as follows:
a.a $15,000 provisional ATI for the period 1 September 2020 to 11 March 2021, resulting in an annual rate of $4,401 payable by the applicant for that period;
b.a $15,000 provisional ATI for the period 12 March 2021 to 30 September 2021, resulting in an annual rate of $4,401 payable by the applicant for that period; and
c.a $28,522 ATI assessed by the ATO for the period 1 October 2021 to 30 September 2022, resulting in an annual rate of $0 payable by the applicant for that period.
On 30 July 2023, a delegate of the registrar found that reasons 2 and 8A were established, decided to set the father's adjusted taxable income at $62,000 over the period 20 May 2023 to 19 May 2025, and increased the rate of child support payable by $1925, to account for the cost of the eldest child's braces. On 10 August 2023, the mother objected to the original decision. On 13 August 2023, the father also objected to the original decision. On 6 October 2023, an authorised objections officer disallowed the objections. On 31 October 2023, the mother sought a review of the objection decision of the Tribunal.
On 17 April 2024, the parties appeared at the hearing before the Tribunal. After the hearing, the Tribunal delayed making its decision to allow the parties time to provide additional evidence, which they did, and made its decision on 29 May 2024. In its reasons for decision, the Tribunal identified, in the “Background”, that the Child Support (Assessment) Act1989 (Cth) (“the Act”) provides for an administrative assessment of the child support payable and that it uses a formula which contains variables such as the parents' adjusted taxable incomes and their percentages of care of the children.
The Tribunal noted that the Act provided for a departure from the administrative decisions in certain circumstances. The Tribunal identified, in the “Objection History”, the holding of a directions hearing on 28 February 2024, the making of directions requiring compliance by 29 April 2024 and scheduling the matter for hearing on 17 April 2024. The Tribunal also issued, in accordance with section 95J of the Act, a request for exercise of powers to obtain from Ms C, the director of B Pty Ltd, the following documents.
a.The 2022 and 2023 financial statements, including income tax returns, balance sheets and profit and loss statements for [B Pty Ltd];
b.A statement outlining all benefits received by [ENU24] in the 2022 and 2023 financial years by way of provision of a motor vehicle, mobile telephone and other benefits not reflected in his income tax return; and
c.A declaration from [Ms C] outlining her duties and regular work hours at [B Pty Ltd] and whether she is employed elsewhere and, if so, whether this is full-time, part-time or casual employment. [Ms C] is to provide all relevant documentation to support her declaration.
The Tribunal noted that Ms C refused to comply with the order and provided correspondence instead.
The Tribunal identified hearing the matter on 17 September 2024 by Microsoft Teams and that the father appeared in person and was represented by Mr E. The Tribunal noted that the child support registrar was not represented at the hearing and that the Tribunal considered documentation provided by the child support registrar, as well as the mother and the father, and documents in respect of the section 98J(1) order. The Tribunal, on the day of the hearing, made further directions to the parents, and identified that the mother provided a response on 22 April 2024, and that on 2 May 2024, the father provided additional documents which were not accepted into evidence as they were found to be irrelevant, and that on 28 May 2024, the mother provided additional documents which were not accepted into evidence as they were found to be irrelevant.
The Tribunal identified the issues in the case relevantly as follows:
[16]: The Tribunal had regard to the first respondent’s evidence that the eldest child no longer attended counselling. It noted the applicant’s request that the matter be deferred for six weeks to allow for the eldest child to undergo a psychological assessment to determine with which parent she should live. The Tribunal recorded that it had refused the request, observing that any change to care arrangements could be separately notified to the Agency ([42]-[43]). In relation to the two younger children’s health, the Tribunal was not persuaded that the minimal out of pocket costs warranted an adjustment to the administrative assessment ([45]).
[17]: The Tribunal then turned to consider the applicant’s income and financial resources. It outlined the applicant’s evidence in respect of his earnings as well as the first respondent’s contention that his income and financial resources were significantly greater than he reported ([47]-[48]). It had regard to the parties’ conflicting evidence regarding the applicant’s former […] business, [B Pty Ltd], and later casual employment with [B Pty Ltd]. The Tribunal considered the applicant’s evidence in respect of the nature of his relationship with [Ms C], to whom he was previously engaged and who was the director of, and his employer at, [B Pty Ltd] ([49]-[56]). This included the applicant’s contention that [Ms C], a full-time employee of the law firm that has represented the applicant throughout this matter, was a “skilled [tradesperson] who had done subcontracting work for the applicant in the past. The Tribunal also recorded that it put to the applicant an SMS message regarding his ability to claim the children’s laptops on tax, to which the applicant said that it was merely aspirational and not signalling an intention that he would claim through [B Pty Ltd] ([57]).
The Tribunal identified in its consideration the requirements in respect of a ground for departure under section 117(2)(b)(i), which is as follows:
Matters as to which court must be satisfied before making order
(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(i) because of high costs involved in enabling a parent to spend time with, or communicate with, the child;
The Tribunal identified that there are special needs in accordance with authority if the needs are necessary or desirable for the child's welfare but are outside the normal needs of a child, that is catered for within the formula. The Tribunal also made reference to the requirement that there be special circumstances, being, the facts of the case must establish something which is special or out of the ordinary.
The Tribunal referred to the evidence from Dr D, a dentist, in relation to the eldest child and the need for correction of identified malocclusion and that expanded braces, are required for completion of the treatment. The Tribunal found the cost of the orthodontics was $7700. The Tribunal found the mother made this payment on 28 November 2022 reflected in three withdrawals from her mortgage account in November and December 2022. The Tribunal identified the mother is seeking a 50 per cent contribution from the father in respect of the older child's orthodontic costs.
The Tribunal referred to the orthodontic evidence and that the mother had approached the father for a contribution, and he had refused. The Tribunal identified the father's position is that the mother did seek a contribution from him regarding orthodontic costs and that he was hoping to contribute but he could not. The father's representative before the Tribunal, Mr E, advanced the argument that orthodontic treatment is not unusual, saying that the expense falls within the normal costs of raising children.
The Tribunal identified the difference in the present case from an authority relied upon by Mr E, that costs have not, in fact, been incurred and in circumstances where the mother had sought a contribution from the father under section 117 of the Act. Mr E sought to maintain that orthodontic costs fell within the normal rubric of raising children. The Tribunal did not accept that proposition.
The Tribunal correctly identified that the authority relied upon by Mr E did not support the proposition that orthodontics are not a special need for the purposes of section 117 and that the mother followed the very recommendation of that authority as how to proceed to secure relief in relation to future orthodontic expenses, being the lodging of a departure application, which was the very course taken by the mother in these proceedings.
The Tribunal identified the costs of the older child in the present case from 1 October 2022 being assessed as $14,373 and the actual costs arising for the orthodontics is 54 per cent of the assessed costs of the child. The Tribunal made reference to the mother's 2023 adjusted taxable income being relatively modest in the amount of income, being $68,343, so that the dental costs alone required her to apply over 11 per cent of her total income, that financial year, to the older child's necessary orthodontic work.
The Tribunal identified it was satisfied that the cost of children formula does not include a component for orthodontics. The Tribunal was satisfied that the older child required orthodontic treatment which was necessary for her health and welfare and is not an expense included in the calculation of normal needs that are to be addressed within the formula assessment. The Tribunal next considered whether the cost significantly impacted on the mother's capacity to provide for the older child. The Tribunal made reference to the submission advanced by Mr E that there is no probative evidence to indicate the mother's capacity to provide financial support for the older child was significantly reduced because of this expense.
The Tribunal found that the mother provided evidence of the redraw facility on her mortgage and identified the redraw facility, as of 16 September 2022, as being reduced from $17,686.39 to $10,495.77, after the orthodontic payments were made. The Tribunal identified that the redraw facility was modest, and that the mortgage which remained payable is $221,000 and that the mother had deposited funds into the mortgage offset account to minimise her interest and draws on these funds when required. The Tribunal identified that while these funds can be withdrawn, they are not savings to pay for orthodontics and that the mother increased her debt level.
The Tribunal identified that the mother is solely responsible for the mortgage and that the outstanding mortgage is significant given the mother's adjusted taxable income, and the Tribunal was not persuaded that the redraw facility established that the orthodontic treatment did not significantly impact on her capacity to provide for the older child, as contended for by the father. The Tribunal was satisfied that the older child's special needs reduced the capacity of the mother to provide financial support to the older child and her siblings. The Tribunal therefore found there were special circumstances in this case, being, the cost of maintaining the older child is significantly affected because of her special needs. The Tribunal concluded that the ground provided in section 117(2)(b)(i) of the Act is established.
The Tribunal turned to consider the requirement as to whether a departure would be just and equitable, directing attention to what is fair to the parents and their children. The Tribunal identified considering all the factors required under section 117(4) of the Act and turned to the relevant evidence in that regard. The Tribunal was satisfied that the children do not have income or financial resources that would render the administrative assessment unjust or unfair. The Tribunal referred to the request for a deferral of six weeks to allow time for the older child to undergo a psychological assessment and determine which parent she would live-with following an apparent altercation with the mother, hearing her and Mr E's submissions, and taking into account the statutory objectives, the Tribunal refused the request and relevantly noted that any change to the care arrangements may be relevant to Child Support.
The Tribunal referred to the father's adjusted taxable incomes for 2021 to 2023. The mother contended that the father's income and financial resources are significantly greater than his adjusted taxable income would suggest. The mother made reference to the father transferring a company to his fiancée and that the business is run in all but name only, by the father. It was submitted that the fiancée may assist with the paperwork but that the father is the face, heart and brains of the company and undertakes all quotes and generates the income of the company.
The mother contended that the transfer of the business was motivated to minimise child support and estimated the father's income to be in vicinity of $100,000 per annum. The father maintained that his position is that of a casual tradesperson and his adjusted taxable income accurately reflects his capacity to provide for the children. The Tribunal referred to the father's work history and operating as a sole trader under the name of B Pty Ltd. Reference was made to Child Support contacting the director of the company in relation to the father's invoices, and that the father felt this was an invasion of his privacy, and that he had stopped operating B Pty Ltd, that he had difficulties managing the business paperwork and managing finances, and that he had accumulated large tax and child support debts.
The Tribunal identified the father was declared bankrupt and that he was unemployed for a while. The Tribunal made reference to the father saying he was offered employment by B Pty Ltd, the director being his fiancée, who he then described as his boss and friend. The father maintained that the relationship had broken down and whilst he was living in the same house as Ms C, they no longer shared a relationship benefit but are friends with benefits and that she is his boss. The father accepted that there are social media posts that suggest they continue to socialise together but denied they are still engaged. The father could not recall when the new company was formed and contended the similar name to his sole trading enterprise is merely coincidental.
The Tribunal referred to the father denying that he is the face of the company operation but accepted that it is his contact number, not that of Ms C, that is listed on the pages and Facebook advertising for the company, and that it appears Ms C is employed on a full-time basis, by Mr E, at E Law Firm. The father maintained that both he and Ms C undertook quotations, depending on who was available.
The Tribunal referred to the father's message as to what he proposed to purchase in relation to his contribution for the orthodontics. The Tribunal referred to the response by Ms C and taking the father through his bank statements in the period 1 December 2023 to February 2024.
The Tribunal referred to the father driving a vehicle owned by the company. The father conceded that in addition to his rent, Ms C meets most of his food expenses but said she does not meet any costs associated with the care of the children, including their extracurricular activities. The father made reference to an alleged loan from Ms C. The Tribunal identified from the father's bank statements that he did not make payments towards household rent, as Ms C had declared, apart from possible withdrawals, and referred to the amount transferred by Ms C into the father's account.
The Tribunal identified that it considered the commercial arrangement in place between the father and Ms C was a sham and that it is the father's professional skills, expenses and qualifications that generates the company's income, and that Ms C works full-time for an unrelated business. The Tribunal concluded that Ms C's involvement as secretary of the company, to that of the father, was predominantly a vehicle to reduce the father's child support liability. The Tribunal found the income of the company is through the father's efforts. The Tribunal referred to the principle that, in the case of self-employed parents, the taxable income may not be an accurate reflection of their earning capacity and financial resources.
The Tribunal referred to Ms C refusing to provide any of the company's financial evidence when directed to do so, and that the father's bank statement indicated that he has minimal self-support funds. The Tribunal identified the difficulty of reconciling the father's payslips for the company with the payment summary that was provided in respect of his alleged gross payments. The Tribunal referred to evidence suggesting that in 29 days, the father earned over $41,000. The Tribunal noted that if the payment summary is relied on, it suggests the father's 2024 financial income would be in the vicinity of $141,299. The Tribunal found the evidence suggests that the father's income and financial resources are in excess of $100,000 per annum.
The Tribunal found that it was just and equitable that the adjusted taxable income be varied for 2023, being $82,524 and found that this strikes the correct balance and results in a just and equitable outcome. The Tribunal referred to the current administrative assessment and was satisfied that the arrears proposed would not cause him undue hardship. The Tribunal found it was both just and equitable that the father meet half the costs associated with the older child's orthodontics, which is $3850. The Tribunal was satisfied of the father's capacity to meet this cost given its findings regarding his income and financial resources. The Tribunal found that the older child's special needs have priority over the father's discretionary expenditure.
The Tribunal was satisfied that the father's contribution to the older child's orthodontic costs can be met over a one-year period commencing on the date the mother lodged the application, being 20 April 2024. The Tribunal reached the requisite level of satisfaction in the father's capacity to meet his necessary expenses and his ongoing child support liability, in addition to the arrears created in the vicinity of $3850, in respect of the older child's orthodontics. The Tribunal concluded the father would not suffer undue hardship in meeting these arrears. The Tribunal found hardship would be caused to the mother and children, were the father not to contribute to the older child's special needs and to the children's standard day expenses to the extent that his income and financial resources allow. The Tribunal was satisfied that the administrative assessment was unfair, given the older child has special needs and the father's income and financial resources.
The Tribunal found that this resulted in an unjust and inequitable level of child support by the father, given the circumstances of each parent. The Tribunal found it is just and equitable to depart from the administrative assessment. The Tribunal determined the administrative assessment was otherwise proper in directing attention to what is fair to the community. The Tribunal was satisfied that the departure from the assessment will better reflect the financial resources that have been available to both parents to ensure that the financial level of support provided by the parties for the children is determined according to their capacity to provide support. The Tribunal found the determination of the administrative assessment was otherwise proper in making its decision.
In relation to ground 1, Mr E contended that the conduct giving rise to an apprehension of bias was the questioning of the applicant at length, compared to the questioning of the respondent. The transcript, which was admitted into evidence, does not support the characterisation advanced by Mr E of different questioning by the Tribunal as between the applicant and the respondent. Mr E also made reference to the alleged refusal to adjourn the matter to allow the child to undergo psychological assessment. Given the directions that have been made and the irrelevance of the psychological assessment as identified by the Tribunal, the refusal of the adjournment cannot be said to lack in evidence and intelligible justification and does not identify conduct supporting the allegation of apprehended bias.
The characterisation of the requirements of the Tribunal to undertake under section 98C(ii)(A) of the Act does not assist in identifying any conduct by the Tribunal to support the allegation of bias. The Tribunal provided cogent and logical reasons for its decision. In relation to the reference to where the children might be living, the Tribunal correctly identified that an application for variation could be made if there was a relevant change. In relation to ground 1, paragraph (a) does not identify any conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to determine the matter on its merits.
In relation to paragraph (b), the alleged conduct by the Tribunal was an alleged finding that the father could have owned B Pty Ltd when he was an undischarged bankrupt. There was no such finding to that effect by the Tribunal. Rather, the Tribunal identified merely the sham nature of the employment of the father by B Pty Ltd through its director Ms C in circumstances where she was identified as having a full-time job and the father was the relevant person to contact and had the relevant skills.
That adverse finding by the Tribunal was open to the Tribunal and is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.
There is no basis for finding apprehended bias by the Tribunal as alleged in particulars (a) and (b), in the amended notice of grounds of appeal. Those grounds fail to make out the alleged error in respect of the alleged question of law as to whether the decision was affected by bias.
In relation to ground 2, it was alleged that the Tribunal questioned the respondent when the applicant was not present. There is no evidence to support the actual questioning of the mother when the respondent was not present. The evidence of Mr E, referring to a comment by an associate, falls well short of supporting the proposition advanced in paragraph (a) to ground 2. The Court accepts the evidence of the mother, which is inconsistent with Mr E’s proposition.
Further, the Court finds that the communication from the associate was a matter of which Mr E was aware at the time of the commencement of the hearing, and the failure to advance any alleged ground of alleged denial of procedural fairness by reason of those circumstances or an allegation that it supports a proposition of apprehended bias must have been a forensic decision of the kind that would not be permitted to be raised as an alleged error, even if the evidence supported the same. The Court finds that there was no denial of procedural fairness as alleged by ground 2.
In relation to ground 3, it is apparent from the Tribunal's decision that the Tribunal had a genuine intellectual engagement with the evidence before it, as supported by the references to which the Court was taken in the Tribunal's reasons, in particular, at paragraphs 31 to 35. The challenge raised by this ground is, in reality, a disagreement with the adverse findings made by the Tribunal in relation to an expense that was obviously met by the mother and was not shared by the father. The adverse findings by the Tribunal in relation to that expense and it meeting the statutory criteria were open. No jurisdictional error is made out by ground 3.
In relation to ground 4, there was no constructive failure by the Tribunal in the exercise of its jurisdiction. The Tribunal correctly identified the relevant law, and in substance, the ground reflects a disagreement with the adverse findings by the Tribunal in relation to the father's adjusted taxable income and financial resources. The adverse finding in relation to the sham arrangement between the father and his alleged employer was open to the Tribunal given the responses by Ms C and the information to which the Tribunal referred.
This is not a case where there was any finding by the Tribunal that third parties provided financial assistance to the father on charitable terms, and there is no misapplication of the meaning of income, property and financial resources as alleged. There is no identification of non-recurring gifts or voluntary contributions from a third party characterised as a gift or charity. There was a failure to comply with production by the Court by the employer being an entity in which it was open to the Tribunal to find was within his control and that he was the person behind the company.
The proposition that he received gifts or charity is not supported by the evidence, nor is there any basis to support the contention that the Tribunal took into account the income, earning capacity, property or financial resources - a person who is not a party to the proceedings. The proposition that the Tribunal considered a factor that does not exist has not been made out. The Tribunal found that there was a proper basis for departure as identified in the reasons above. The proposition that the Tribunal did not meet the necessary precondition under section 117(1)(b)(i) of the Act is not made out.
The proposition that the Tribunal failed to reach the prescribed satisfaction to make a departure order is flawed. The Tribunal did not reason on the basis of a factor that does not exist or that had no probative basis. It was open to the Tribunal on the evidence before it, for the reasons it identified, to find that the father had an ability to derive income above that provided by the ATO-assessed income. The proposition that there is no significant change is a factual disagreement and does not identify any error in the approach by the Tribunal to the requirements under section 117(2) of the Act.
The proposition that jurisdictional facts enliven the power to make the order were not established is without foundation and reflects a disagreement with the adverse factual findings which were open to the Tribunal. The Tribunal correctly identified the jurisdictional requirements of section 117(2) of the Act and made findings that were open to it, on the evidence, for the reasons it identified. No jurisdictional error is made out by any of the paragraphs to ground 4. The amended notice of appeal fails to make out any relevant error.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 30 May 2025
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