Twelftree and Forster (Child support) - [2023] AATA 4699

Twelftree and Forster (Child support) [2023] AATA 4699 (30 October 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/SC026286
APPLICANT:  Ms Twelftree
OTHER PARTIES:  Child Support Registrar
Mr Forster

TRIBUNAL:Senior Member D Benk
DECISION DATE: 30 October 2023
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides:

· From 28 October 2022 to 31 December 2024, Mr Forster is to be assessed as having an adjusted taxable income of $87,000.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – a ground for departure established – decision to depart - decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

This matter has a long history. To make the complex simple, immediately prior to Mr Forster’s change of assessment application, he was assessed to pay child support at a rate of $8,750 per annum for his son [Child 1] for the period 1 November 2021 to 31 December 2023 following a review by the Tribunal (differently constituted) on 7 December 2021.
Mr Forster lodged a change of assessment maintaining that the decision of the Tribunal above failed to take into account his changed financial circumstances and caring responsibilities. On review by a senior case manager, the objection was disallowed as it was determined there was no ground established. Mr Forster then lodged an objection which ultimately determined there were grounds to depart from the previous decision and set Mr Forster’s child support liability as follows:
·      An annual rate of $8,750 to apply until 27 October 2022 (as determined by the Tribunal, differently constituted);
·      An annual rate of $3,614 between 28 October 2022 and 11 May 2023; and
·      An annual rate of nil between 12 May 2023 and 30 June 2026.
Ms Twelftree now seeks review by the Tribunal maintaining the assessment beyond 28 October 2022 does not take into account Mr Forster’s financial resources as he has recently sold property and purchased assets, nor does it reflect the changed care arrangements. Mr Forster objects to any change.
The matter underwent the usual case management pathway with a telephone directions hearing resulting in directions being issued. Ms Twelftree complied in full but Mr Forster did not. The matter then proceeded to hearing proper on 30 October 2023 when Mr Forster asked the Tribunal to formally recuse itself.

Recusal

The request for recusal was refused. An extempore decision was given at hearing. For the sake of completeness, the application and reasons for refusal are outlined below.
In short, Mr Forster contends that my previous role in managing a complaint against a Member of the Division who presided in a previous review in which Mr Forster was a…

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 Twelftree and Forster (Child support)

Details

AGLC: Twelftree and Forster (Child support) [2023] AATA 4699
Case: [2023] AATA 4699
Decision Date: 30 October 2023

CaseChat Overview and Summary

This matter concerned an application for a departure determination under the Child Support (Assessment) Act 1989, brought by Mr Forster against Ms Twelftree. The dispute centred on whether the administrative assessment of child support should be departed from due to the income, property, and financial resources of Mr Forster, the liable parent. The decision was made by D Benk SM.

The primary legal issues before the Tribunal were whether a ground for departure from the child support assessment existed under section 117(2) of the Act, specifically concerning the income, property, or financial resources of the liable parent, and if so, whether it would be just and equitable and otherwise proper to make a departure order. The Tribunal also had to consider Mr Forster's application for recusal, based on the apprehension that the Tribunal might not bring an impartial mind to the resolution of the case due to a prior complaint Mr Forster had made against a member of the Division.

The Tribunal applied the principles from *Ebner v Official Trustee in Bankruptcy* to the recusal application, determining that a fair-minded lay observer would not reasonably apprehend partiality. The Tribunal found that its previous oversight role in a complaint against another member did not logically connect to an apprehended deviation from deciding the current matter on its merits. Regarding the departure determination, the Tribunal noted that procedural fairness requires a reasonable opportunity to be heard, and where a party fails to provide significant documents or a satisfactory explanation, they have not availed themselves of that opportunity. The Tribunal found that Mr Forster had been given ample opportunity to produce relevant documents but failed to do so, preferring the available documentary evidence. The Tribunal also referred to *Gyselman v Gyselman* for the principle that "special circumstances" for departure must be out of the ordinary.

The Tribunal refused the application for recusal. It found that a ground for departure under section 117(2)(c)(ia) was established due to Mr Forster's income, property, or financial resources. The Tribunal concluded that it would be just and equitable and otherwise proper to make a departure order.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Be that as it may, given the difficulty in obtaining direct responses from Mr Forster, the Tribunal preferred the documentary evidence even if incomplete. On this point, the Tribunal recalls the discussion of Halligan FM in Manchester v Maher and Ors [2011] FMCA 877.Procedural fairness requires, inter alia, that a party be given a reasonable opportunity to be heard. But where a party is given that opportunity and chooses not to use it, for example by being required to produce documents of significance to the decision maker’s task within a reasonable time frame but failing to either produce the documents or to provide a satisfactory explanation for that failure, then that party has failed to avail themselves of the opportunity afforded to them to be heard. The Tribunal is satisfied Mr Forster was given an opportunity both following the telephone directions hearing and immediately prior to hearing to fully produce documents relevant to the matter. He chose to throw this opportunity away. Whilst more criticism is foreshadowed, it is not legitimate. Procedural fairness was offered. The parties are familiar with the process of departure. However, for the sake of completeness and background the Tribunal will summarise the law. Before making an order for departure from the assessment under section 116 of the Child Support (Assessment) Act 1989 (the Act), subsection 117(1) requires the Tribunal to be satisfied that a ground for departure exists under subsection 117(2); that it would be just and equitable as regards the child, the carer parent and the liable parent to make such an order; and that it would be otherwise proper to make the order. Subsection 117(2) sets out the grounds upon which such an order might be made. Relevantly, paragraph (c) states as follows:That, in the special circumstances of the case,[2] application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:(i) because of the income, earning capacity, property and financial resources of the child; or(ia) because of the income, property or financial resources of either parent; or(ib) because of the earning capacity of either parent; or(ii) because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.[2] The phrase “special circumstances of the case” is not defined in the Act. The Full Family Court, in the case of Gyselman and Gyselman (1992) FLC 92-279 stated that:It is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the court will not interfere with the administrative formula result in the ordinary run of cases.

Decision

Reasons for decision

The request for recusal was refused. An extempore decision was given at hearing. For the sake of completeness, the application and reasons for refusal are outlined below. In short, Mr Forster contends that my previous role in managing a complaint against a Member of the Division who presided in a previous review in which Mr Forster was a party, approximately three years ago, impedes my impartiality. Certainly, at that time my role was to oversee the membership, but at no stage was I involved in the decision-making or review of the evidence as it pertained to the substantial issues to be resolved. Mr Forster in submissions referred to the applicable principles for recusal being those set out by the High Court in Ebner v Official Trustee in Bankruptcy.[1][1] [2000] HCA 63; (2000) 205 CLR 337. The Court held in that case that a judge (or in this case, the Tribunal) is disqualified, subject to qualifications relating to waiver or necessity, “if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The Ebner case identifies three tests:(1) there must be an identification of the factor which is said might lead a judge to resolve the question other than on its legal and factual merits; (2) there must be an articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair‑minded lay observer. In the present case, the Tribunal does not accept that a “fair-minded lay observer might reasonably apprehend that [I] might not bring an impartial mind to the resolution of the question [that I am] required to decide”, that is, to “decide [the] case other than on its legal and factual merits”. My historical involvement with Mr Forster was to respond to a complaint he made regarding conduct of a member when I was charged with oversight of the Division. Mr Forster in his submissions has not established any logical connection between my previous assessment of his complaint and the apprehended deviation from deciding the current matter on its merits. Further Mr Forster has not explained how my previous involvement three years ago might lead me to resolve the current issue other than on its legal and factual merits. Finally, it is inferred that a fair-minded observer may infer a deviation from the tasks, however, given that I have had no involvement in merits review of the substantive application previously again, this has not been satisfied. My role is to conduct a merits review of the substantive decision before me. I have not engaged in such a process relating to these parties previously. I therefore concluded there was no legal basis established upon which I should recuse myself. Mr Forster was a difficult witness. He did not answer questions put to him and seemed to ramble in what could only be seen as an attempt to avoid the question. When asked why he did not comply with the Directions in full he responded by labelling the Tribunal as “hostile”, maintaining that he had provided enough information. At this point, the Tribunal explained that it endeavoured to afford him procedural fairness and understand why he failed to comply to determine whether other case management strategies could be adopted to allow him to put his best case forward. Again, Mr Forster expressed unrestrained criticism of the Tribunal maintaining he did not appreciate “the tone”. He testified he has no income and his partner supports him but he was “not at liberty to say” how she does so. The Tribunal was uncertain as to who removed the liberty but as this statement was repeated on multiple occasions, ultimately concluded that it suited Mr Forster’s narrative and apparently was the foundation for his defence.

Ratio Decidendi

Legal Principle Established

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