DECISION OF THE CHILD SUPPORT COMMISSIONER

Commissioner’s Case No:	CCS/3640/1998

1.	This appeal by the absent parent does not succeed.  I confirm the decision given by the child support appeal tribunal on 12 June 1998 to the effect that the effective date of the child support assessment is 8 July 1996 initially but that from 2 December 1996 the assessment is amended to £113.90 weekly.

2.	During the course of this appeal the parties have found it difficult to focus on the issues in question.  Several matters have been raised or considered which are not relevant for the purposes of my decision.  These include difficulties in relation to access to or contact with the children, the business and personal activities of the absent parent’s representative, the professional career and activities of the tribunal chairman and the contents or effect of an affidavit from the absent parent’s brother (who is a solicitor) which appears never to have been produced in relation to these proceedings.  At one stage there was a challenge to the accuracy of the tribunal’s arithmetic and a suggestion that weekly and monthly figures had been confused.  As I understand it, this suggestion has not been pursued and the accuracy of the calculations (as opposed to the accuracy of the facts found by the tribunal on which they are based) is no longer challenged.

3.	By virtue of the provisions of section 28A of the Child Support Act 1991 where a maintenance assessment is in force, the person with care or the absent parent may apply to the Secretary of State for a departure direction to be made under section 28F.  There are various matters which must be taken into account but the principal issues are whether the case falls within one or more of the specified categories and, if it does, whether it would be just and equitable in all of the circumstances of the case to give a departure direction.  The specified categories relevant to this appeal are set out in regulations 24(diversion of income) and 25 (inconsistent life-style) of the Child Support Departure Direction and Consequential Amendment Regulations 1996.  The grounds of appeal relate principally to procedural matters and it is not necessary for me to review in my decision all of the evidence in this case, although I have considered it all in relation to the findings made by the tribunal.  However, it is necessary to set out the procedural history.  

4.	The absent parent is the father and the person with care is the mother of two boys who are qualifying children for child support purposes.  The parents were married to each other but separated at the end of 1994 and after briefly living together again, finally separated at the beginning of March 1995.  On 8 July 1996 an order was made that the absent parent pay £4.80 weekly child support maintenance.  On 15 January 1997 the person with care applied for a departure direction in respect of several of the specified categories.  (The tribunal subsequently decided that no case had been made in respect of any of the categories except for regulations 24 and 25, the person with care has not challenged that decision, and I make no further comment in relation to those other categories).  In accordance with the provisions of section 28D(1)(b) of the Child Support Act 1991 the Secretary of State referred the application to a Child Support Appeal Tribunal for determination.

5.	Meanwhile, proceedings were pending in the County Court in relation to financial matters between the absent parent, the person with care and certain third parties.  The absent parent and the person with care each swore affidavits in relation to their means and other financial matters.  On 22 July 1997 a detailed order was made by the District Judge.  The order was made by the agreement and with the consent of the parties and contains no findings of fact made by the court which are relevant for the purposes of the tribunal’s decision.

6.	The essence of the mother’s case in relation to regulations 24 and 25 is that the father had been a partner in and then sole proprietor of a firm DG, which had been acquired by a different firm DG Limited, at a price which was substantially below its true value.  The absent parent was an employee of DG Limited.  The absent parent was living with a woman to whom I shall refer as TT who was the company secretary of DG Limited, of which the fathers own father was a director, and substantial assets were in fact under the control of or available to the father (i.e. the absent parent), although through a variety of methods he had disguised this.  The absent parent denied any inpropriety and denied the specific allegations made by the mother.

7.	On 25 November 1997 the chairman of the tribunal issued detailed directions.  Amongst other matters these required documentary and other evidence in relation to DG and directed both parties to attend the tribunal hearing.  The chairman’s directions included the statements that “if the directions are not followed the tribunal will draw such inferences as the actual evidence supports.  Adverse inferences may be drawn from a failure to comply.  ...in particular the tribunal wish to question [the absent parent].  Adverse inferences may be drawn from a failure to attend in compliance with this direction”.

8.	The tribunal met on 25 March 1998 to consider the matter.  All parties attended.  Papers were submitted at the hearing and the tribunal decided to adjourn so that it and the parties could consider these papers and to arrange for the attendance of TT in her capacity as company secretary and employee of DG Limited and to produce the company accounts as well as documentary evidence of her own income.  A witness summons was served on TT in accordance with regulation 10 of the Child Support Appeal Tribunal (Procedure) Regulations 1992 and TT acknowledged service by letter of 5 May 1998.  In that letter she applied for the summons to be set aside on the grounds that if both she and the absent parent were away from DG Limited on the same day this would mean that the firm would have to be shut down for that day which “is unacceptable”.  On 13 May 1998 the chairman refused to set aside the witness summons.  In my view the chairman was quite right to refuse this application.  A witness summons issued by legal authority is not to be regarded as unacceptable or treated in a less than serious manner.

9.	On 5 May 1998 the mother executed a change of name deed in which she relinquished and abandoned the use of the surname that she had shared with the father and adopted and assumed a different surname.  On 26 May 1998 TT wrote to say that “I hereby wish to appeal and seek leave to appeal to the Commissioner” against the chairman’s refusal to set aside the witness summons.  The Commissioner has no jurisdiction to entertain such an application or appeal and on 11 June 1998 the chairman of the tribunal refused the application.  

10.	The adjourned hearing by the tribunal was set for 12 June 1998.  At 9.30am on that date the clerk to the tribunal took a telephone call on behalf of the father to say that he “has a migraine and his doctor has been called.  He wants to attend the hearing and requests a postponement”.  Technically an application for a postponement has to be in writing (regulation 8 of the Child Support Appeal Tribunals (Procedure) Regulations 1992) but the clerk put the telephone message in writing and referred it to the chairman who refused to postpone the hearing.  However, quite apart from any power in the chairman to postpone the hearing at any time before it has started, the tribunal has the power under regulation 12(1) to adjourn the hearing at any time on the application of any party to the proceedings or of its own motion.  The hearing of the appeal commenced as listed.  The mother attended with a relative.  Neither the father nor TT nor anybody to represent either of them, or anybody from DG or DG Limited attended.  The tribunal raised the question of whether the hearing should be adjourned in view of these absences.  The mother stated that she had seen the father the previous day, he had seemed well, he had no history of migraine attacks, a friend of his had done a similar thing in the context of a court appearance, she regarded his absence as intentional and she pointed out that he had failed to comply with the chairman’s directions and that TT had ignored the witness summons.  The Secretary of State’s representative (inaccurately referred to as a child support officer) was content to proceed.  In the absence of the parties the tribunal considered the matter and decided to proceed.  It is recorded that:

“It noted the history of delay and evasion and the failure of [TT] to attend or to send in the papers she was required to produced.  It concluded that the alleged migraine attack was the sort of illness that can be relied on to persuade a doctor to issue a certificate and that the whole scenario was unconvincing.  It concluded that there was probably sufficient information available for a proper decision to be reached;  if necessary the question of adjournment would be reconsidered in the course of the hearing.  In the event no adjournment was found necessary”.

11.	The tribunal made detailed findings of fact.  In relation to regulation 24 it was satisfied that the account and explanation given by the mother was essentially correct.  In relation to regulation 25 it made findings in respect of evidence relating to the lifestyle of the father.  In my view the tribunal was entitled to make these findings on the basis of the evidence before it.  £68.40 weekly income of the father had been taken into account in the original assessment.  On the basis of regulations 24 and 25 the tribunal found that a further £379.00 weekly should be taken into account.  The effect of this was to increase the maintenance assessment to £113.90 per week from 2 December 1996.

12.	On 14 August 1998 the father applied for leave to appeal to the Child Support Commissioner against the decision of the tribunal.  On 18 August 1998 the chairman of the tribunal refused leave to appeal.  The appeal was renewed before the Chief Commissioner who, after an oral hearing on 11 December 1998, gave leave to appeal.

13.	The father requested an oral hearing of the appeal.  On 18 May 1999 I issued a direction giving all parties until 14 June 1999 to make final written submissions, including views on whether (and if so, why) I should hold an oral hearing of this appeal.  The mother opposed an oral hearing on the basis that there was no evidence to support an appeal and that the father was trying to delay matters and cause further upset to her.  The father dated his final submissions 15 June 1999 but they were not received in the Commissioner’s office until 21 June 1999.  This certainly did nothing to challenge the suggestion that throughout the history of this matter he has been seeking to delay proceedings.  On 16 June 1999 I issued a direction refusing the request for an oral hearing on the basis that I was satisfied that the proceedings could properly be determined without a hearing.

14.	The father argues that the tribunal erred in law in refusing to adjourn and “erred in fact seeking to contravert the medical diagnosis of a professional general practitioner who had examined the [absent parent] on the morning of the hearing and his recommendations were known to the tribunal”.  There is no basis for saying that the recommendations of anybody who had examined the absent parent that morning were known to the tribunal.  The chairman (and subsequently the tribunal) had received a message that the father was stating that he had a migraine and that his doctor had been called.  On 16 December 1998 Dr Brewer reported that he had attended the father on 12 June 1998 who had “a severe incapacitating headache probably migraineous.  He was therefore unable to attend work or court”.  Even this document was not sent to the Commissioner’s office until 14 January 1999.  In my view, and in the circumstances, the tribunal was entitled to be dubious about the reason for the absent parent not attending and not wishing the matter to go ahead.  There has been some discussion of whether he had sought a postponement or adjournment and on the technical difference between the two, but that does not affect the main point.  

15.	Regulation 11(6) of the Child Support Appeals Tribunal (Procedure) Regulation 1992 provides that if a party to the proceedings to whom notice has been given fails to appear at the hearing the tribunal may “having regard to all the circumstances including any explanation offered for the absence” proceed with the appeal not withstanding the absence.  In the present case the tribunal did consider all relevant circumstances, the directions given by the chairman of the tribunal on 25 October 1997 had warned of the possible consequences of non attendance, and the hearing had already been adjourned once.  I agree with the comments made on behalf of the Secretary of State in paragraph 5 of the submission of 17 February 1999.  The tribunal acted lawfully and reasonably and there was no breach of the rules of natural justice or of the requirements of fair procedure.  The father has stated that he is relying on the Court of Appeal decision in Rose v. Humbles (Inspector of Taxes) [1972]  WLR 33.  However, the Court of Appeal decision is irrelevant to this point and I suspect that the intended reference is to the decision of Mr Justice Buckley in the hearing of that case in the Chancery Division reported at [1970] 2 All ER 519.  The judge ruled (that the adjournment of the hearing by any tribunal is a matter prima facie [on the face of it or in the first place] for the discretion of the tribunal and the exercise of that discretion will not be interfered with by a appellate court in normal circumstances.  If the discretion has been exercised in such a way as to cause what can properly be regarded as an injustice to any of the parties effected, then the proper course for an appellate court to take is to ensure that the matter is further heard.  In that case it was difficult to see why the Commissioners had found it inappropriate to allow for an adjournment for the taxpayers evidence to be taken.  However, the case before me does not involve a dispute between one private individual and a government or national or public department or agency.  The interests of the qualifying children and of the mother also have to be considered and (unlike in the case before Mr Justice Buckley) it is abundantly clear why the tribunal thought it inappropriate to adjourn the matter any further.  Were the law to be otherwise, the father would have been in a position to prevent the tribunal ever reaching a determination adverse to him. 

16.	The father’s next ground of appeal was that the tribunal erred in law in that its finding of fact overturned the findings of the County Court and that only the Court of Appeal had the power to overturn the County Court’s findings of fact.  I observe that the County Court is not a “superior tribunal” as suggested by the absent parent.  As I have indicated above, the County Court did not make any findings of fact and its order was made by consent.  There is a legal doctrine known as res judicata, part of which is “cause of action estoppel”.  This arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties and having involved the same subject matter.  In such a case there is an absolute bar on bringing the same cause of action unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment.  There is another form of estoppel known as “issue estoppel” which arises where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to re-open that issue (Lord Keith in Arnold - v - National Westminster Bank PLC [1991] 2AC93 at 104.5).  The proceedings before the child support appeal tribunal do not involve the same cause of action as the proceedings before the County Court and whether relevant facts had been established for the purposes of regulations 24 and 25 were different issues from those litigated in the County Court.  There is no substance to this ground of the appeal.

17.	The father also argues that having issued a witness summons the tribunal was wrong to proceed to make findings of fact without hearing that witness.  However, I agree with the submission from the representative of the Secretary of State (Paragraph 9) that the tribunal was entitled to proceed without the oral testimony of a particular witness, even though a witness summons might have been issued in relation to that witness, and that the chairman of the tribunal had made clear the consequences should that witness fail to attend and/or give evidence.

18.	I have considered various other points put forward by or on behalf of the absent parent, but they are all either detailed examples of the general grounds of appeal or relate to the matters that I have indicated I regard as irrelevant.

19.	For the above reasons this appeal by the absent parent does not succeed.

					(Signed)	H Levenson
							Commissioner

					(Date)	29 July 1999