MDXJ and Secretary, Department of Social Services (Social services second review)
[2020] AATA 2520
•28 July 2020
MDXJ and Secretary, Department of Social Services (Social services second review) [2020] AATA 2520 (28 July 2020)
Division:GENERAL DIVISION
File Number(s): 2017/7214
Re:MDXJ
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
AndSVPX
OTHER PARTY
File Number(s): 2017/7144
Re:SVPX
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
AndMDXJ
OTHER PARTY
DECISION
Tribunal:Member M Kennedy
Date:28 July 2020
Place:Adelaide
The decision under review is set aside and substituted with a decision affirming the authorised review officer’s decision.
Member M Kennedy
CATCHWORDS
SOCIAL SECURITY – Family Tax Benefit – percentage of care – care arrangement – application for recusal – whether any substantive matter remained that justified a further hearing in the reviews or whether final orders should be made – decision under review set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975
A New Tax System (Family Assistance) Act 1999
REASONS FOR DECISION
Member M Kennedy
28 July 2020
INTRODUCTION
This matter relates to applications for review of MDXJ and SVPX, who have both applied for a second-tier review of a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (“Tier 1”) dated 30 October 2017.
MDXJ and SVPX are the father and mother respectively their son (“Child A”). The decision relates to MDXJ’s Family Tax Benefit in circumstances where there was a change to care arrangements in respect of Child A.
On 19 February 2019, I made directions on a preliminary issue that had arisen in the course of the review by refusing to issue summonses requested by MDXJ. At that time, I directed that the proceedings were to be listed for a further hearing for the parties to be heard on the issue of final orders and the decision in the reviews.
Before the further hearing I had envisaged was arranged, MDXJ lodged an application under s 44 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) in the Federal Court. Upon being made aware of this, I took no further action as the Court was seized of the matter.
On 20 December 2019, Besanko J dismissed MDXJ’s application as incompetent. His Honour essentially observed that the reasons and directions I had given on 19 February 2019 was not a decision within s 44(1) of the AAT Act.
As I understand it, there was some delay in the Tribunal being notified that the Federal Court proceedings had been determined, and a further delay in me making internal directions within the Tribunal to list the matter for a directions hearing. The matter was listed for a directions hearing on 16 July 2020.
By way of email dated 9 July 2020, MDXJ asked me to adjourn the hearing on medical grounds and light of litigious commitments he has elsewhere, but I refused that request.
The hearing that I had envisaged at direction 2 of my directions of 19 February 2019 therefore proceeded on 16 July 2020. The hearing had an agenda of three items:
(a)whether I should recuse myself;
(b)whether any substantive matter remained that justified a further hearing in the reviews or whether I should make final orders; and
(c)if a further hearing was required what timetable should be set down for that to occur.
The directions hearing proceeded by telephone, MDXJ and SVPX were both self-represented. The Secretary was represented by Samuel Cummings of Sparke Helmore.
I REFUSE TO RECUSE MYSELF
On 15 July 2020, MDXJ wrote to the Registry by email advising that he would ask me to recuse myself from further conducting on the grounds of bias. MDXJ expressed that he had no faith that I had dealt with the matter impartially, and nor had I reasonably interpreted the legislation. I further understand MDXJ to contend that because he has made a serious allegation of bias, that is a ground in itself for me to recuse myself.
MDXJ alleges that the direction I made to refuse to issue the summonses was deliberately disingenuous as it was guided by an intent to prevent the issuing of the [summonses]. At the hearing, MDXJ submitted, as I understand it, that in dealing with the question of the refusal to issue the summonses I had gone outside the directions I had made arranging the hearing on what I had described as a “preliminary matter”, and I had not afforded him procedural fairness in addressing an issue he had raised regarding the relationship between two provisions of the family assistance law. As I further understand it, MDXJ also submitted that errors he says I have made in my interpretation of the legislation point to bias.
MDXJ also raised a matter concerning correspondence sent by the Registry at my direction on 11 September 2018, where I had insisted on compliance with a direction to limit the length of submissions, and where he had not done so, as an indicator of bias.
The Secretary contended that I should not recuse myself. It was submitted that the fact that an appeal ground had been advanced criticising the way I had handled the matter did not justify recusal. Likewise, even if I had made legal errors in interpreting the legislation it would not mean I was biased, it would just mean that I was wrong. It was submitted that the criticisms made by MDXJ did not indicate pre-judgment, just regular judgment.
SVPX expressed her confusion about the proceedings but having followed the submissions made on behalf of the Secretary indicated she agreed with them.
I am in the unusual position of being able to observe the nature of the complaints MDXJ makes of my directions and management of the proceedings from the Notice of Appeal and the reasons for decision of Besanko J.
I take special care in these resumed proceedings to provide no comment or response to those complaints. My reasons of 19 February 2019 are lengthy and were prepared with care. They are intended to speak for themselves as to my findings of fact and application of the legislation. If my reasons disclose legal error in the interpretation of the legislation, then that will be a matter for a court in competent proceedings. I can do no more than reject MDXJ’s assertion that if there is legal error it points to a form of bias.
As to MDXJ’s complaints regarding procedure, I concede that I have adopted unusual procedures for dealing with this review but have explained why I had adopted that course in paragraphs [4], [5] and [6] of my reasons of 19 February 2019. I am surprised that MDXJ contends that he is taken by surprise by me dealing with the question of the issuing as the summonses given the history of the proceedings (which is a matter of record).
It would be open to me to take steps to cure any procedural defect in these proceedings while the matter remains before me, if such a defect could be cured. However, I do not accept that MDXJ has been denied procedural fairness in the processes leading to my directions and reasons of 19 February 2019. From my perspective, the hearing on preliminary matters dealt with exactly the issues that I had intended them to deal with and that all parties were on notice would be dealt with, with the exception of observations made about the interrelationship between two parts of the legislation that were raised by MDXJ himself.
I cannot make that assessment conclusively. My own perception as to the fairness of the procedures deployed to bring the proceedings to this point would not be relevant to a court considering a competent application raising procedural fairness grounds. It may be that a court views the unusual procedures in this matter as unfair, but I must reject any suggestion that the procedures I have used in this matter arise out of disingenuity. Like my analysis of the legislation and the evidence leading to my findings of fact, the procedures I adopted are a matter of record and speak for themselves.
Finally, as to the correspondence I had sent to all parties on 11 September 2018, MDXJ’s contentions as to why this correspondence demonstrated bias was not well explained. As mentioned in the letter, the Tribunal has power to limit the length of written submissions. It was explained that I had done so having regard to the objectives of the Tribunal as set out in its Act. My insistence that such directions be observed does not amount to either actual bias or a reasonable apprehension of bias in my view.
I therefore refused to recuse myself and advised the parties accordingly during the hearing on 16 July 2020.
THERE ARE NO FURTHER SUBSTANTIVE MATTERS TO DECIDE TO JUSTIFY A FURTHER HEARING
The Secretary contends that I have no further substantive work to do in these matters. I have noted that in the reasons for judgment of Besanko J, MDXJ is noted to have observed during those proceedings that ‘there is absolutely nothing left’.
Despite making that remark in the proceedings before Besanko J, MDXJ contends that there should be a further hearing because Besanko J had intended for me to conduct a further hearing on the relationship between section 23 and 35C of the A New Tax System (Family Assistance) Act 1999 (“the FA Act”). In this regard, MDXJ points to the remarks of his Honour at [34], where his Honour speculates that at the further hearing I had intended to convene it is possible MDXJ would have been given the opportunity to make further submissions about that issue.
I do not interpret Besanko J’s remarks as obliging me to hold another hearing for MDXJ to address that issue further. For my part, I do not recall having any specific agenda for the further hearing I had directed to take place other than seeking confirmation from all parties that there was nothing substantively left for me to do in deciding the review. Notwithstanding that I shared MDXJ’s view that ‘there was absolutely nothing left’ it seemed inappropriate to me to finalise the matter without hearing from the parties in light of my direction as to the summonses and the reasons for it. I had not anticipated the delay or the incompetent recourse to the Federal Court before I could raise that as a matter of open-minded courtesy with the parties.
Furthermore, as squarely identified by the Federal Court at [31], my reasons of 19 February 2019 at paragraph [82] very much look like I had formed a view that s 23 had no application. Upon reviewing my reasons, it cannot be denied that I had indeed formed that view. Hearing more from MDXJ on that point would therefore serve no utility.
Finally, MDXJ asks me to convene a further hearing so he can advance an argument in relation to s 35D of the FA Act. MDXJ observes that I had not addressed that matter in my reasons of 19 February 2019, although he reproduces an extract of transcript where I made a passing reference to events of 19 September as a hypothetical alternative in the course of an exchange with the Secretary’s Counsel in the preliminary hearing.
The Secretary opposes arranging a further hearing for MDXJ to advance arguments in that regard. It is submitted that it had never been raised as an issue to be determined and should not now be raised after MDXJ has been unsuccessful in his other legal arguments before me.
My concern in relation to any arguments MDXJ wishes to raise about s 35D of the FA Act is that I have made clear findings as to the relevant time when I am to decide whether a “care arrangement” applied in relation to Child A (at paragraph [37]) and I have also made clear findings that a “care arrangement” did not apply at that time. Looking at the text of the now repealed s 35D of the FA Act, entertaining any argument from MDXJ as to the applicability of that provisions would require me to disturb each of those findings because a criterion for satisfying s 35D was that a ‘care arrangement applies in relation to the child’.
Given my findings at paragraphs [37], [55] and [66] of my reasons of 19 February 2019, MDXJ would be entitled to proceed on the basis that his argument that s 35D of the FA Act provides an alternative pathway to the discretion at s 35L would be rejected because of the findings I have already reached and pronounced. No further hearing is justified for that matter to be developed.
I accept the submission of the Secretary that the only appropriate way to proceed is to make final my decision on the reviews. I raised this proposition with SVPX who had independently applied for review of the Tier 1 decision. SVPX agreed that a final decision should be made in her matter also.
DECISION
I will set aside the decision under review and substitute a decision affirming the authorised review officer’s decision of 4 July 2017. To avoid doubt, this decision is intended to finally discharge the Tribunal’s jurisdiction in each of these matters and draws on the findings and reasons published on 19 February 2019.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for the decision herein of Member M Kennedy
...................[Sgnd].............................
Associate
Dated: 28 July 2020
Date of directions hearing:
16 July 2020
Applicants:
By telephone
Advocate for the Respondent:
Samuel Cummings, Sparke Helmore
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