Twelftree and Forster (Child support)

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.