Penman and Child Support Registrar and Anor - [2015] FamCAFC 135

FAMILY COURT OF AUSTRALIA

PENMAN & CHILD SUPPORT REGISTRAR AND ANOR

[2015] FamCAFC 135

FAMILY LAW – APPEAL – LEAVE TO APPEAL – CHILD SUPPORT – Appeal from the Federal Circuit Court’s judicial review of a Social Security Appeals Tribunal (SSAT) decision – Where the SSAT made a child support departure order – Where the father appealed the decision to the Federal Circuit Court – Where the father asserted procedural unfairness on the part of the trial judge – Where there was an inconsistency between statements made by the trial judge during the hearing and in reasons for judgment – Leave to appeal granted – Where no denial of procedural fairness – Where error not established – Appeal dismissed – No order for costs.

Acts Interpretation Act 1901 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth)
Tribunals Amalgamation Act 2015 (Cth)

Burns & Grint [2014] FamCAFC 48
Child Support Registrar & Ahern and Anor (2014) FLC 98-063
Child Support Registrar & Crabbe and Anor (2014) FLC 98-062
CZBB & CZBC v Minister for Immigration and Anor [2013] FCCA 310

APPELLANT:

Mr Penman

FIRST RESPONDENT:

Child Support Registrar

SECOND RESPONDENT:

Ms Morgan

FILE NUMBER:

SYC

6524

2012

APPEAL NUMBER:

2013

DATE DELIVERED:

15 July 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, Strickland & Ryan JJ

HEARING DATE:

13 October 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

14 June 2013

LOWER COURT MNC:

[2013] FCCA 492

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE FIRST RESPONDENT:

Mr Wong

SOLICITOR FOR THE FIRST RESPONDENT:

Australian Government Solicitor

THE SECOND RESPONDENT:

No appearance

Orders

There be leave to appeal the orders of the Federal Circuit Court made on 14 June 2013.
The appeal be dismissed.
There be no order for costs in relation to the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Penman & Child Support Registrar and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 85 of 2013
File Number: SYC 6524 of 2012

Mr Penman

Appellant

And

Child Support Registrar

First Respondent

And

Ms Morgan

Second Respondent

REASONS FOR JUDGMENT

Finn & Strickland JJ

This is an application for leave to appeal, and if leave is granted, an appeal by Mr Penman (“the father”) against orders made by Judge Scarlett of the Federal Circuit Court of Australia on 14 June 2013. By the orders now sought to be appealed, his Honour dismissed an appeal by the father against a decision of the Social Security Appeals Tribunal (“SSAT”) made on 3 September 2012. That decision can broadly be described as relating to the father’s liability to pay child support for the three children of his marriage to Ms Morgan (“the mother”). By his orders his Honour also affirmed the decision of the SSAT.
As was the case in the appeal from the SSAT to the Federal Circuit Court, the first respondent to this appeal is the Child Support Registrar and the second respondent is the mother. The mother advised the Eastern Region Appeals Registrar by email on 9 October 2014 that she did not wish to participate in this appeal.
The statutory basis and nature of an appeal from the SSAT to the Federal Circuit Court (which is an appeal limited to a question of law) and from the Federal Circuit Court to this Court (which is not limited only to a question of law) is explained in decisions of this Court such as Child Support Registrar & Crabbe and Anor (2014) FLC 98-062 at [4] to [12], and Burns & Grint [2014] FamCAFC 48 at [4] to [11].
We mention that although the SSAT was abolished as from 1 July 2015 by the Tribunals Amalgamation Act 2015 (Cth), with its functions being assumed by a division of the Administrative Appeals Tribunal and with changes also to the appellate process, this Court retains jurisdiction to determine this appeal by virtue of the transitional provisions of the Tribunals Amalgamation Act and s 7A of the Acts Interpretation Act 1901 (Cth).

Factual and procedural background

The father and the mother married in 1987 and separated in mid 2010. As already mentioned, there are three children of the marriage, who were aged 14, 13 and eight years at the time when the orders of the Federal Circuit Court, now sought to be appealed, were made. The parents apparently share the care of the children.
In his reasons for judgment in relation to the orders now sought to be appealed, Judge Scarlett provided (at [4] to [20]) a history of the child support assessments in the period since the parties’ separation up until the making of the decision by the SSAT, which was the subject of the appeal to his Honour.
It appears from [9] of the father’s written submissions to us (which the father told us were prepared by counsel) that the father accepts the accuracy of the history provided by his Honour. That history which, we note, is consistent with that provided in the Registrar’s written submissions to us, can be summarised as follows:
·From 29 July 2011 to 4 September 2011 the father was assessed to pay child support of $18 per annum to the mother.
·On 5 September 2011 the father provided an estimate of a nil income for the 2011/2012 financial year. The mother was then assessed to pay child support to the father at an annual rate of $153 per year for the period 5 September to 15 November 2011. This assessment was based on the mother’s 2009/2010 adjusted taxable income of $20,755 and the father’s estimated nil income.
·On or about 5 October 2011 the father contacted the Child Support Agency and requested an increase in the assessment of child support payable by the mother, based on his estimate that her annual income was at least $54,600.
·On 17 October 2011 the mother applied for a departure from the assessment based on the father’s income and earning capacity.
·On 24 November 2011 (and again on 20 December 2014) the father applied for a departure from the assessment for the period 1 July 2010 to 23 November 2011 on the ground that the assessment did not correctly reflect either parent’s income, property, financial resources or capacity to earn an income.
·On 23 January 2012 a senior case officer of the Agency made a change of assessment decision, departing from the administrative assessment by setting the annual rate of child support for both parties at nil for the period 23 January 2012 to 31 October 2013.
·On 29 January 2012 the father objected to that decision.
·On 28 March 2012 an objections officer disallowed the objection and on that same day, the father applied to the SSAT for review of the decision in relation to the objection.
·A pre-hearing conference took place on 17 May 2012, at which time the Principal Member of the SSAT issued directions.
·There was a hearing before the SSAT on 18 July 2012. Both the father and the mother attended. Despite an objection from the father, the SSAT proceeded with the hearing.
·On 2 August 2012 the SSAT issued further directions requiring the father to produce further documents. A decision was made to conduct a further hearing.
·A further hearing took place on 3 September 2012. Both the father and the mother attended. The father’s mother attended and gave evidence.
·The SSAT made its decision on 3 September 2012 and released its reasons on 13 September 2012. Its decision was that:
• for the period 4 October 2011 to 31 October 2013, the father’s adjusted taxable income should be set at $64,865;
• for the period 4 October 2011 to 31 October 2013, the mother’s adjusted taxable income should be set at $47,368.
On a date, which is not apparent from the material before us, the father filed a notice of appeal in the Federal Circuit Court against the decision of the SSAT. On 27 November 2012 he filed an amended notice of appeal, on which he relied when his appeal was heard by Judge Scarlett on 11 March 2013.
His Honour delivered his reasons for judgment on 14 June 2013 and made orders dismissing the father’s appeal against the SSAT decision and affirming that decision. These are the orders now sought to be appealed by the father by his notice of appeal filed on 9 July 2013.
For the sake of completeness, we mention that at the hearing before us we were provided with a document dated 18 December 2013 addressed to the father from the Child Support Agency headed “DECISION REGARDING CHANGE OF ASSESSMENT”, (which set the annual rate of child support payable by each parent for the period 24 July 2013 to 31 July 2016 at $0) together with a copy of a further decision from the SSAT dated 2 September 2014, which set the father’s adjusted taxable income for the period from 1 November 2013 to 31 December 2015. These two documents became Exhibits 1 and 2 respectively before us.
The decision of the SSAT dated 2 September 2014 (Exhibit 2) has no relevance for present purposes. The only present relevance of the document that became Exhibit 1, is that it reveals that following, and on the basis of, the SSAT decision of 3 September 2012 concerning each party’s adjusted taxable income (being the decision which is the subject of the orders now sought to be appealed before us), the father was assessed to pay child support at an annual rate of $2529 in the period 1 January 2012 to 31 March 2013, and then $2538 for the period 1 April 2013 to 31 October 2013.

The grounds of appeal

It will be convenient, having regard to the manner in which the matter was argued before us, to consider the father’s grounds of appeal before considering the issue of whether leave to appeal should be granted.
The father’s notice of appeal contained nine grounds of appeal. However it was stated in his written outline of argument that Grounds 3, 4(b), and 9 were not pursued.
Of the remaining grounds, one (Ground 1) was directed to procedural fairness issues and was in the following terms:
1.The Judge failed to ensure the Appellant, as a litigant in person, understood the procedure of the court and the Appellant’s obligations as a litigant in the presentation of his case to enable him to properly and fairly present his case.
The other remaining grounds are directed to two specific issues relevant to whether or not there should be a departure from an administrative assessment, those issues, being the impact of the father’s health on his earning capacity and the financial position of his mother:
2. The Judge erred in finding that ground 8 of the Appeal before the Judge, being the question as to whether the SSAT erred in law in having regard to the income, earning capacity, property and financial resources of the Appellant’s mother, Mrs [P], was not or did not state an error or question of law.
…
4. The Judge erred in finding that:
a.the Appellant’s further medical evidence being the report of Dr [M] dated 19 August 2012 and specifically the opinion and evidence as the Appellant’s capacity to undertake computer work was considered by the SSAT.
…
5.The Judge erred in not finding that the failure of the SSAT to give proper weight or consideration to the fact that the Applicant’s medical condition impacts on his earning capacity and specifically his ability to perform computer work was not an error of law.
6. The Judge erred by failing to properly consider, have regard to and or engage the submissions made by the Appellant that the SSAT made findings and findings of fact that were not reasonably open on the evidence.
7. The Judge erred in failing to consider the Appellant’s submissions and grounds that the SSAT did not have regard to irrelevant matters or gave weight to irrelevant matters in making its findings ad [sic] conclusions of law.
8. The Judge erred in finding that the ground that the SSAT made findings and findings of fact that were not reasonably open on the evidence was not made out.
Ground 5 can be seen, by its terms, to be concerned with the same matter as Ground 4(a), that matter being the father’s health and its impact on his earning capacity. Moreover, in his written outline of argument the father relies on the same submissions (being in [23] and [24] of the outline) in support of both Grounds 4(a) and 5.
It is also stated in the father’s written outline (at [27], [28] and [29]) that the written submissions made in support of Ground 4(a) are also made in support of Grounds 6, 7 and 8. Thus, it is clear that those three grounds are also directed to the issue of the father’s health and its impact on his earning capacity.

The procedural fairness ground

As has already been seen, this ground asserts that his Honour “failed to ensure [the father], as a litigant in person, understood the procedure of the court and the [father’s] obligations as a litigant in the presentation of his case to enable him to properly and fairly present his case.”
We understood the basis of this complaint to be that at the beginning of the hearing before him, his Honour had indicated to the father that his written submissions were “comprehensive and well understood by the court”, but then in his judgment his Honour was critical, indeed completely dismissive, of certain of the father’s grounds of appeal and of the written submissions apparently made in support of them.
The relevant passage of transcript at the opening of the hearing before his Honour is as follows:
HIS HONOUR:   Very well. Now, since this matter was last before me, I have received a number of submissions. I have received a detailed and comprehensive submission on behalf of the appellant, some 49 pages, which I have read. I have received a submission – not quite as lengthy – from the Child Support Registrar, which I have read. I have received a submission from Ms Cole on behalf of the second respondent, which I have read. I gather, Mr [Penman], that you had some assistance in preparing this submission.
MR [PENMAN]:   I had a barrister, a friend of mine, help me through it. I am dyslexic, so he has helped me try and make it easier for your Honour to try and understand my position.
HIS HONOUR:   I would have to say I was pleasantly surprised when I read the submission. It is comprehensive and detailed and reflects a lot of work.
MR [PENMAN]:   It does, yes.
HIS HONOUR:   It certainly has given me a clear understanding of the various issues that you want the court to consider. As I said, I’ve read all the submissions through. What I want to do this morning is to give each party a period of time to speak to the submissions if they wish to do so. Now, it’s not compulsory…
(Transcript of hearing on 11 March 2013, p. 2, lines 35 – 45, p. 3. lines 1 – 9)
Then, however, in his reasons for judgment (published on 14 June 2013) his Honour said:
108.The Appellant has raised 16 grounds of appeal in his Amended Notice of Appeal filed on 27th November 2012. He has raised a further complaint, of apprehended bias, in his written submissions.
109.The grounds of appeal are not particularised and are repetitive. This has made it more difficult for the Court to deal with the Appellant’s arguments and for the Respondents to answer the case brought by the Appellant.
110.The difficulty has been compounded by the Appellant’s written submissions, apparently prepared for him by counsel, which are prolix and unfocussed. In order to address a particular ground, the Court, and the Respondents, must travel through the document consisting of some 117 paragraphs over 49 pages.
111.In my view, the lack of particularity of certain grounds renders them unable to be met. It will not do for an Appellant to make a bald statement alleging error on the part of the Tribunal and expect the Court to trawl through a lengthy submission in the hope that a particular part of the submission meets the ground alleged.
112.Grounds 1 to 7 of the Amended Notice of Appeal all fall into this category, in my view. They are as follows: …
113.These seven grounds are phrased in such wide terms as to be meaningless without particulars. Without more, they cannot establish an error of law on the part of the Tribunal.
We understand the father’s essential complaint in the context of this first ground to be that his Honour should have informed the father about the deficiencies in his grounds and submissions, and should have given him an opportunity to address these deficiencies at the hearing. Furthermore, the father submitted that if his Honour had required clarification of particulars of the grounds of appeal, then he should have raised this with the father at one of the earlier directions hearings, so that the father, as a litigant in person, could have amended his grounds of appeal prior to the final hearing before his Honour. During the course of his oral submissions in support of this ground, the father took us to the only exchange between his Honour and the father, where his Honour asked him about one particular inconsistency in his submissions, the father submitting that he was then able to address the issue because his Honour had raised it with him (Transcript, 11 March 2013, p.40, lines 38 to 47).
In order to consider whether there is substance in this first complaint, which the father describes in procedural fairness terms, and indeed also in the other complaints which the father raises before us, it is necessary for us to examine closely his Honour’s reasons.
Before doing so we will set out the grounds of appeal which were contained in the father’s amended notice of appeal filed on 27 November 2012 against the decision of the SSAT, and which were set out at the commencement of his Honour’s reasons for judgment (at [3]):
1.Whether the Tribunal failed to accord the Applicant procedural fairness.
2.Whether the Tribunal denied the Applicant natural justice.
3. Whether the Tribunal’s decision was irrational.
4. Whether the Tribunal’s decision was illogical.
5. Whether the Tribunal failed to provide adequate reasons.
6. Whether the Tribunal made significant errors of fact or conclusions that were not open to be made on the evidence and or made findings of fact or conclusions that were not based on evidence.
7.Whether the Tribunal had regard to or considered erroneous or irrelevant matters.
8.Whether the Tribunal had erred in law regarding the income, earning capacity, property and financial resources of the Applicant’s mother, Mrs [P].
9.The Applicant is dyslexic. At the hearing the Second Respondent was permitted to adduce and rely on evidence that was served on the Applicant at the hearing. By reason of the Applicant’s disability the Applicant was at a disadvantage and not able to properly consider the evidence, test the evidence and or provide evidence in reply.
10.The hearing should have been adjourned to a further date to ensure the proceedings were conducted in a procedural [sic] fair manner and to allow the Applicant to properly consider the evidence, test the evidence and or provide evidence in reply and take advice.
11.The Applicant was denied natural justice in the presentation of his case and the ability to properly call medical evidence.
12.The Tribunal had regard to irrelevant matters or gave weight to irrelevant matters which were compounded by the denial of natural justice and or procedural fairness in that the Applicant was unable to properly consider the evidence, test the evidence and or provide evidence in reply.
13.The Tribunal made findings and findings of fact that were not reasonably open on the evidence.
14.The Tribunal failed to give proper weight and consideration to the fact that the Applicant’s medical condition impacts the earning capacity.
15.The Tribunal failed to give adequate reasons or set out the reasoning process for the findings of fact and decision.
16.The Tribunal failed to include parenting payments made to Ms [Morgan] that are legally required to (be) considered income for the purpose of Child maintenance calculations.

Reasons of the primary judge

In his reasons for judgment after setting out the grounds of appeal, his Honour explained (at [4] to [20]) the factual background to this case (in the terms which we have summarised at [5] to [7] of these reasons).
His Honour next set out the actual decision of the SSAT before providing (at [22] to [42]) a summary of the reasons of the SSAT for its decision.
Then, having observed (at [43]) that “[t]he Appellant, the Child Support registrar and the Second Respondent all prepared comprehensive written submissions” (which is an observation consistent with that made by his Honour at the hearing before him: see [20] of these reasons), his Honour provided what is a very detailed and accurate summary of the father’s written submissions. Notwithstanding the length of that summary, we consider it necessary, given the procedural fairness and other complaints raised before us, to include it in these reasons. This is because it shows that despite the criticisms which his Honour later made in his reasons of the father’s written submissions, he nevertheless can be seen to have had regard to those submissions, and thus to the substance of the father’s complaints about the decision of the SSAT:
44. In the introductory paragraphs of his submission, the Appellant referred to the decisions of this Court in Carrigan & Fredericks (SSAT Appeal) [[2011] FMCAfam 544]; Tasman & Tisdell (SSAT Appeal) [[2008] FMCAfam 126] and Jordan & Verne (SSAT Appeal) [[2012] FMCAfam 21; (2012) 46 Fam LR 629].
45.The Appellant submits that the Tribunal erred in finding that there were special circumstances that provided a ground for departure in respect of the administrative assessment. This is because the Tribunal erred in determining that the Appellant’s earning capacity is substantially greater than the income used in the assessment.
46.It is submitted that this finding is a conclusion of law, not of fact, and is therefore appealable.
47. The Appellant further submits that the Tribunal’s Reasons for Decision at [67] fail to disclose the reasoning process in reaching the conclusion that the Appellant should be regarded as having an earning capacity of at least the annualised male average total weekly earnings. The Tribunal also erred in finding that the Appellant’s income was “nil”.
48. The Appellant also complains that the Tribunal denied him procedural fairness and natural justice in that he was not allowed to submit documentation obtained from the Agency under an FOI Request. (the Tribunal refers to this matter at paragraph [13] of its Reasons for Decision).
49. The Appellant refers to the decision of this Court in LDME & JMA (SSAT Appeal) [[2007] FMCAfam 712] at [17]-[44] in support of his submission that the Tribunal did not explain the reasoning behind its findings of fact.
50. Further, he refers to WAIJ v Minister for Immigration & Multicultural Affairs [[2004] FCAFC 74], where the Full Court of the Federal Court held at [21] that failure by a Tribunal, in this case the Refugee Review Tribunal, to act “judicially” will necessarily stamp the review procedure as one which did not accord an applicant practical fairness or justice. Again, at [22], the Court held that the requirement for the review procedure to be carried out according to law is an irreducible duty arising out of s.75(v) of the Constitution.
51. The Appellant went on to submit that the Tribunal should have given him an opportunity to explain why the Agency had recorded an income estimate of zero before making findings about his financial position and that of the company (Fletcher and Others v Federal Commissioner of Taxation [(1988) 84 ALR 295] and PJ & Child support Registrar (SSAT Appeal) [[2007] FMCAfam 829].
52. In respect of the Appellant’s claim that the Tribunal decision was irrational and illogical (Grounds 3 and 4), he refers to the High Court decision Minister for Immigration and Citizenship v SZMDS [[2010] HCA 16; (2010) 240 CLR 611], where Crennan and Bell JJ observed at [130]:
In the context of the Tribunal’s decision here, “Illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came…is one at which no rational or logical decision maker could arrive on the same evidence. [Ibid at [130]]
53. In that case, Gummow ACJ and Kiefel J at [40] noted the earlier comments of Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [[2008] FMCAfam 126], where their Honours had said at [38]:
…the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds [Ibid at [40]]
54. The Appellant submits that the Tribunal erred in having regard to the income he earned as an SAP consultant, which had been earned prior to 2007, 4 years earlier. Further, he submits that “the SSAT has erred at law having regard to the Applicant’s income and earning capacity prior to 2007”. [Appellant’s submissions at [24]]
55.The Appellant submitted that, as he had provided uncontradicted medical evidence from his general medical practitioner who expressed the opinion that his medical condition would prevent him from undertaking computer work, there was no basis on which the Tribunal could find that there was no medical evidence to support his claim.
56. The Appellant submitted that, when he attended the hearing on 18 July 2012, he received for the first time copies of the Second Respondent’s credit card statements. As he is dyslexic, the Appellant did not feel “confident (or competent) in his ability to continue the hearing that day” [Ibid at [36]] and sought an adjournment to another day. The application for an adjournment was refused. He submits that he was denied an opportunity to present his case properly, which is a denial or procedural fairness by the Tribunal trying to make things fair by allowing him time to consider the documents (see Re Refugee Review Tribunal; Ex parte Aala [[2000] HCA 57; (2000) 204 CLR 82; 176 ALR 219] at [4]).
57. Further as to procedural fairness, the Appellant relies on Fletcher and Others v Federal Commissioner of Taxation [supra] and PJ & Child Support Registrar (SSAT Appeal) [supra] at [24]-[64].
58. The Appellant submitted that the failure by the Tribunal to allow him an extension of time to obtain and provide further or additional medical evidence in respect of his capacity for work falls within his complaints about:
a) the failure by the Tribunal to provide procedural fairness and natural justice; and
b)the Appellant’s complaint at Ground 14 that the Tribunal failed to give proper weight and consideration to the fact that the Appellant’s medical condition impacts his earning capacity.
59. He further submits that, his capacity for work having been raised, the Tribunal should have allowed reasonable time for him to obtain further medical evidence.
60. The Appellant submits that the Tribunal fell into jurisdictional error by failing to construe the legislative provisions of s.117(7B) of the Assessment Act, which he also claimed showed irrational reasoning, and referred to the decision of Riethmuller FM [As his Honour then was] in Waites & Lawson (SSAT Appeal) [[2011] FMCAfam 42] at [17]-[19] (see also Carlson & Acuff (SSAT Appeal) [[2010] FMCAfam 677] at [66]-[69], where Riethmuller FM stated that s.117(7B)(c) creates a rebuttable presumption, the onus or rebutting the presumption being on the parent [Ibid at [65]-[66]]. Based on the evidence, it was clearly not open to the Tribunal to determine that the Appellant had “in his mind” to have his business evicted and as a result reduce his earning capacity [There does not appear to be a finding of this nature in the Tribunal’s Reasons for Decision].
61. The Appellant further submits that the Tribunal erred in considering the Appellant’s mother’s income, earning capacity, property and financial resources in determining the Appellant’s earning capacity.
62. Again, the Appellant submits that the Tribunal was required by s.117(7A)(b)(i) to consider whether there were special circumstances that made it appropriate to have regard to Mrs [P’s] earning capacity and other matters. He submits that the reasoning used by the Tribunal to do so cannot, as a mater [sic] of law, amount to special circumstances. The Tribunal is required to disregard 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 party to the proceedings, unless in the special circumstances of the case, without a finding that special circumstances exist, such a determination is a determination of jurisdictional fact.
63. The Appellant submits that there is nothing in the facts that amount [sic] special circumstances.
64. The Appellant relies on the decisions of this Court in Wright & Wright & Anor (SSAT Appeal) [[2009] FMCAfam 979] at [20]-[24]. He submits that, whilst his business is struggling and has significant debts, it would be unfair and unreasonable for the Tribunal to find effectively that he should turn his back on the business and return to … consulting.
65. The Appellant refers to the decision of Farrens & Farrens (SSAT Appeal) [[2010] FMCAfam 325] at [26]-[36] to set out the obligations of the Social Security Appeals Tribunal once departing due to special circumstances.
66. The Appellant submits that the Tribunal “failed to properly consider the financial circumstances of the parties” [Appellant’s Submissions at [101]] in the manner required under s.117(4) of the Act having regard to the decisions of PJ & Child Support Registrar (SSAT Appeal) [supra] and Tyagi & Meares (SSAT Appeal) [[2008] FMCAfam 886], saying that in this case no consideration was given to the needs of the parties’ children with respect to school fees. He then sets out in some detail information about the children attending a particular private school, stating that there was ample evidence as to the manner in which the parents expected the children to be educated.
67. The Appellant refers the Court to the decision of the Full Court in Hides & Hatton [(1997) 139 FLR 91; 21 Fam LR 855; FLC 92-759], to make two points:
a) that the Tribunal was alive to the fact that one of the parties’ children was due to commence at the particular private school in 2013 but there is no suggestion in the Tribunal’s decision that it considered the additional expense that will be placed on the Appellant; [This appears to be a submission going to the factual merits of the Appellant’s case rather than a submission as to an error of law.] and
b) the reasoning of the Tribunal has deviated from the ordinary determination in that it has used the findings as to the Appellant’s earning capacity to determine special circumstances.
68. This latter point, it is submitted, “highlights bias on behaviour of the SSAT”. [Appellant’s Submissions at [112]] The Appellant goes on to develop his argument about bias, referring to the decision of the High Court in Laws v Australian Broadcasting Tribunal [(1990) 170 CLR 70] where Gaudron and McHugh JJ referred to the test for apprehension of bias at page 100 of the decision:
When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.
69. I note that this claim of bias is not included amongst the 16 grounds of Appeal in the Amended Notice of Appeal filed on 27^th November 2012. It will be considered and referred to as Ground 17.
70. Curiously, the Appellant’s submission then refers to paragraph [27] of the decision of the Full Court of the Family Court in Forbes & Bream [[2010] FamCAFC 6]. The paragraph referred to, when read in context, does nothing more than paraphrase a statement of the law made by Sexton FM in RWF & BEB [[2007] FMCAfam 483] at [16]. Her Honour’s recital of the law was not an issue in the appeal.
71. The Appellant goes on to submit that the Tribunal failed to include various parenting payments made to the Second Respondent which he claims “are legally required to (sic) considered income for the purpose of Child maintenance calculations”. [Appellant’s Submissions at [115]] The Appellant asserts:
The omission by the SSAT to include and or consider these payments is an error of law. [Ibid at [116]]
72. The Appellant provides no reason as to why this asserted omission is an error of law.
His Honour then summarised, also in considerable detail, the written submissions of the Child Support Registrar (at [73] to [90]) and of the mother at [91] to [107]).
Under the heading “Conclusions”, the six paragraphs ([108] to [113]) in his Honour’s reasons, which we earlier set out when explaining the father’s complaints, then appear; for convenience, we here repeat those six paragraphs (including for the sake of context, the father’s first seven grounds of appeal against the SSAT decision which are contained at [112]):
108. The Appellant has raised 16 grounds of appeal in his Amended Notice of Appeal filed on 27^th November 2012. He has raised a further complaint, of apprehended bias, in his written submissions.
109. The grounds of appeal are not particularised and are repetitive. This has made it more difficult for the Court to deal with the Appellant’s arguments and for the Respondents to answer the case brought by the Appellant.
110. The difficulty has been compounded by the Appellant’s written submissions, apparently prepared for him by counsel, which are prolix and unfocussed. In order to address a particular ground, the Court, and the Respondents, must travel through the document consisting of some 117 paragraphs over 49 pages. (Footnote omitted)
111.In my view, the lack of particularity of certain grounds renders them unable to be met. It will not do for an Appellant to make a bald statement alleging error on the part of the Tribunal and expect the Court to trawl through a lengthy submission in the hope that a particular part of the submission meets the ground alleged.
112. Grounds 1 to 7 of the Amended Notice of Appeal all fall into this category, in my view. They are as follows:
1.Whether the Tribunal failed to accord the Applicant procedural fairness.
2.        Whether the Tribunal denied the Applicant natural justice.
3.        Whether the Tribunal’s decision was irrational.
4.        Whether the Tribunal’s decision was illogical.
5.        Whether the Tribunal failed to provide adequate reasons.
6.Whether the Tribunal made significant errors of fact or conclusions that were not open to be made on the evidence and or made findings of fact or conclusions that were not based on evidence.
7.Whether the Tribunal had regard to or considered erroneous or irrelevant matters.
113. These seven grounds are phrased in such wide terms as to be meaningless without particulars. Without more, they cannot establish an error of law on the part of the Tribunal.

After referring to another recent decision of the Federal Circuit Court (CZBB & CZBC v Minister for Immigration and Anor [2013] FCCA 310) in which the Court refused to address “a similarly wide ground”, and also to the requirement in s 110B of the Child Support (Registration and Collection) Act 1988 (Cth) that an appeal from a decision of the SSAT to the Federal Circuit Court can only be on a question of law, his Honour turned (at [119] to [122]) to Ground 8 which was addressed to the issue of the father’s mother. He concluded (at [122]) that because that ground did “not state a question of law”, it need not be considered further.
It will be necessary for us to return to his Honour’s treatment of Ground 8 in due course since it is the subject of a ground of appeal before us.
His Honour then considered (at [123] to [144]) together, but at length, Grounds 9 and 10 saying:
124.Properly analysed, those two grounds are more appropriately particulars of the one ground, which is an allegation that the Tribunal failed to accord procedural fairness by refusing the Appellant an adjournment.
Because the subject of Grounds 9 and 10 (being an adjournment sought by the father to permit him to familiarise himself with financial material from the mother) was not pursued before us, it is unnecessary to say more about his Honour’s discussion of the grounds, save to say that he concluded (at [144]) that the father had “not demonstrated that he was denied procedural fairness by being refused an adjournment of the hearing” before the SSAT.
Ground 11, which his Honour ultimately concluded had not been made out, related to the issue of the father being able to call medical evidence relating to his capacity to work. As this is an issue also raised before us, we will set out what his Honour said about that issue later in these reasons when discussing the relevant ground of appeal before us.
His Honour then briefly discussed and disposed of Ground 12. We will here include that discussion as it can be seen to have some relevance to the procedural fairness complaint raised by the father before this Court and indeed to certain of the first seven grounds of appeal which his Honour rejected for lack of particularity:
157. Ground 12 of the Amended Notice of Appeal states:
The Tribunal had regard to irrelevant matters and gave weight to irrelevant matters which were compounded by the denial of natural justice and or procedural fairness in that the Applicant was unable to properly consider the evidence, test the evidence and or provide evidence in reply.
158. This ground is confused in its wording and, with respect, it is hard to understand exactly what the Appellant means. To some extent, it appears to be a repetition of the matters raised in the Appellant’s earlier grounds 7, 8, 9, 10 and 11. The Court has already dealt with those grounds. If the Appellant is referring to something else, it should have been particularised. An Appellant who claims that there has been an error of law must state what that error is and not expect the Court to trawl through a lengthy submission in the hope of finding something that might fit with the Appellant’s claim.
159. Ground 12 of the Amended Notice of Appeal has not been made out.
His Honour then discussed at considerably greater length (at [160] to [171]), but ultimately rejected, Ground 13, which asserted that the SSAT “made findings and findings of fact that were not reasonably open on the evidence.” It is unnecessary here to set out his Honour’s discussion of Ground 13, but it is important to note that this ground is in similar terms to Ground 6, which was one of the seven grounds rejected by his Honour for want of particulars. However, in the case of Ground 13, his Honour was able to identify in the father’s written submissions arguments in relation to the ground.
His Honour’s discussion of Ground 14 has some relevance to the appeal before us in that it is also directed to the issue of the impact of the father’s medical condition on his earning capacity in its assertion that the SSAT: “failed to give proper weight or consideration to the fact that the Applicant’s medical condition impacts the earning capacity.” We will return to this complaint later in these reasons.
The subject matters of the remaining three grounds of appeal before his Honour were not pursued before us, and thus we will only refer to them briefly.

Ground 15 asserted a failure on the part of the SSAT “to give adequate reasons or set out the reasoning process for the findings of fact and decision.” Again his Honour discussed this ground at some length (at [181] to [188]), but ultimately concluded that it had not been made out.
Ground 16 was directed to certain parenting payments received by the mother. It was found by his Honour not to have “been made out” and has no present relevance.
The final ground which was not included in the father’s amended notice of appeal, but which, it is important to note, was identified by his Honour as a ground emerging from the father’s summary of argument, asserted that the SSAT was, in his Honour’s words, “guilty of apprehended bias”. His Honour considered (at [196] to [200]) the bases on which this claim was made and determined that it also had not “been made out”.
Finally, and before dealing with the issue of costs, his Honour concluded that the appeal must fail and that the decision of the SSAT should be affirmed.
Before discussing further the father’s procedural fairness complaint, we propose to consider the matters which are the subject of the father’s other two complaints before us, being the position of his mother (Ground 2) and the impact of his health on his earning capacity (Grounds 4(a) and 5 to 8).

The position of the father’s mother

The father’s complaint contained in his second ground of appeal before us, is that the primary judge erred in finding that Ground 8 of the appeal before him “being the question as to whether the SSAT erred in law in having regard to the income, earning capacity, property and financial resources of the [father’s] mother was not or did not state an error or question of law.”
The precise terms of Ground 8 of the father’s appeal against the SSAT decision is:
Whether the Tribunal had erred in law in regarding the income, earning capacity, property and financial resources of the Applicant’s mother, Mrs [P].
As we have earlier explained when canvassing the primary judge’s reasons for judgment, his Honour was of the view which he expressed at [120] and again at [122] of his reasons, that this ground did not state a question of law, and therefore did not need to be considered further.
The father’s oral submissions to us in support of this ground, as we understood them, are adequately summarised in the following paragraph in his written outline of argument:
21. The Tribunal in making its decision assumed that the Appellant’s mother would continue to support him and thus in assessing what hardship might be caused by the orders to the Appellant, wrongly assumed and took into consideration the financial resources of the paternal grandmother who has no legal duty to support the Appellant or the children, although she has in the past chosen to do so. In so doing it is submitted that the Tribunal fell into error and the Judge in rejecting the Appellant’s arguments in Ground 8 of the Appeal to the Federal Circuit Court in regard to this also erred in law.
When considering this complaint by the father, it is important to bear in mind that before there can be a departure from an administrative assessment (whether by the Child Support Registrar, the SSAT or a Court), there must under s 117 of the Child Support (Assessment) Act 1989 (Cth) be a finding that a ground for departure from the assessment exists and also a finding that it would be just and equitable and otherwise proper to make a departure from the assessment. All the available grounds for departure (under s 117(2)) require a finding that “in the special circumstances of the case” one or more of the particular matters (specified in that sub-section) would constitute a ground for departure.
In the present case the SSAT concluded (at [69] to [70] of its decision) that the earning capacities of the father and of the mother “are substantially greater than the incomes used in the assessment” (being the assessment which was the subject of review by the SSAT); that the assessment “does not accurately reflect the earning capacity of either parent”; that “these discrepancies amount to special circumstances that make the application of the administrative assessment result in an unjust and inequitable determination of financial support”; and that as a result, “the ground for departure in sub-paragraph 117(2)(c)(1b) exists.”
It can be seen from the reasons of the SSAT that in reaching its conclusion that a ground for departure from the administrative assessment existed, the SSAT did not take into account the position of the father’s mother. Rather it took into account only the earning capacities of the father and the mother.
It was only when considering the question of hardship in the context of deciding whether it would be just and equitable to depart from the administrative assessment, that the SSAT referred to the position of the father’s mother, saying:
77. With regard to hardship that could be caused by a change to the assessment Mr [Penman] indicated to the Tribunal that he considers Ms [Morgan] should be paying child support to him on the basis of the amount she could earn working full-time.
78. According to Mr [Penman’s] evidence he is effectively supported by his mother, although he stated that she is “tapped out”, which suggested to the Tribunal that Mrs [P] may not be able to continue to provide the support. However, Mrs [P] told the Tribunal that she will continue to support Mr [Penman], and her grandchildren. She said that by support she meant cleaning, feeding, washing and shopping for them. She is also providing Mr [Penman] with accommodation. The Tribunal tried to obtain some sense from Mrs [P] as to whether she has the capacity to continue to provide such support but she declined to answer any questions about her financial situation.
79. While it is true under subparagraph 117(7A)(b)(i) the Tribunal is to disregard the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, the fact that Mrs [P] is providing support for her son and his children means that Mr [Penman] is not required to undertake paid work at present. Instead he can continue to undertake activities which he believes will ultimately benefit his business but currently produce little or no income to support himself and his children.
It will be seen from these paragraphs that the SSAT well recognised that it was not entitled to have regard to the financial position of the father’s mother (even if it had information about that position, which it did not). All that the SSAT did was to conclude that because of the support which the mother was providing (according to her own evidence as set out in [78]), the father was “not required to undertake paid work at present.”
Accordingly, there is, as we endeavoured to explain to the father when he appeared before us, a misapprehension on his part concerning the SSAT’s reasoning in relation to the financial position of his mother. Thus, the relevant ground of appeal to us is misconceived, and must fail.

The impact of the father’s health on his earning capacity

By Ground 4(a) of this appeal, the father asserts that the primary judge erred in finding that the report of Dr M dated 19 August 2012 concerning the father’s capacity to undertake computer work “was considered by the SSAT”.
The father’s written submissions in support of this ground were as follows:
23. The only medical evidence as to the incapacity of the Appellant in the SSAT was the evidence of Mr [sic] [M] that the Appellant could not perform his previous computer work. That evidence was uncontroverted. The SSAT had regard to their own opinion and thus erred in law in making a decision not based on expert evidence and contrary to the expert evidence as to the Appellant’s capacity and medical condition. The Appellant’s evidence as to his condition was not inconsistent to the medical evidence.
24. This was an error of law, and not of fact, in that the SSAT made a decision which was not open to it on the evidence and the learned Judge himself was in error in not holding accordingly.
As we earlier explained Grounds 5, 6, 7 and 8 are essentially addressed to the same issue as Ground 4(a), with the same paragraphs of the written outline (being [23] and [24]) being relied on in support of those grounds. In addition, however, in support of Grounds 7 and 8 the father also relies on the following submission:
28. The Appellant repeats the submissions in paragraphs 23 and 24 above and notes that his new assessment (since the hearing) is based on acceptance of the medical evidence as to his reduce [sic] working capacity. The Appellant seeks to rely on s. 101 of the Assessment Act which provides that the Family Court in hearing an Appeal under s. 102A of the Assessment Act, has a discretion to receive further evidence on questions of fact.
It is to be noted that although in that last quoted paragraph [28] from the father’s written submissions, he referred to the power in this Court to receive further evidence on an appeal, no such application from him was before us.
Our discussion of this particular complaint will begin with a consideration of the SSAT’s approach to the medical evidence concerning the father’s capacity for work, in particular computer work.
The SSAT recorded in its reasons for its decision that it conducted a hearing on 18 July 2012, but had deferred a decision because of the need to give one or both parties more time to file financial material or to consider the other party’s material (SSAT reasons for decision [12] to [17]).
The SSAT also recorded:
18. Mr [Penman] also requested “an extension on providing further medical evidence”. The Presiding Member inferred from this request, and the medical evidence that Mr [Penman] had provided, that he currently had no other medical evidence in relation to his capacity to work. The Presiding Member considered that medical evidence which did not yet exist would not assist it to review the decision made on 28 March 2012 and declined to extend the time for Mr [Penman] to provide additional medical evidence.
The SSAT conducted a resumed hearing on 3 September 2012, as is recorded in its reasons (at [22]).
When considering in its reasons whether a ground for a departure from the administrative assessment existed, the SSAT outlined the father’s evidence, including the following:
32. He said he believed he had shown that he had not reduced his work hours or changed his occupation or industry. He has three crushed vertebrae in his neck from rugby and he suffers headaches in front of a computer, which would affect his ability to work in another industry. He said he believed he had demonstrated why he is in his current financial situation and that it was not due to him trying to affect the child support assessment.
…
57. Mr [Penman] told the Tribunal that one of the reasons he cannot work as a SAP consultant is that he is no longer able to use a computer for extended periods because of headache caused by his neck condition. He has provided medical evidence from his general practitioner, Dr [M], which indicates his neck condition causes pain to his right arm. Dr [M] reported that this pain is made worse with computer work and Mr [Penman] is “unable perform [sic] computer work” due to the condition. Dr [M]’s report makes no reference to headache. The Tribunal notes that Mr [Penman] continues to act as a rugby referee in spite of his neck condition. The Tribunal is not satisfied that the medical evidence establishes that Mr [Penman’s] decision to change his occupation and working pattern was due to the state of his health.
We note at this point that the SSAT’s recording of Dr M’s report of 19 August 2012 is completely accurate in that his report reads:
This is a medical letter certifying that [Mr Penman] has severe cervical spondylosis and prolapsed cervical discs which cause pain to his right arm.
He has pain to the right arm and this is made worse with computer work.
Mr [Penman] is unable perform [sic] computer work due to his medical condition and will require further medical treatment from a neck specialist.
Having determined that there was a ground for departure on the basis of both parties’ earning capacities (as we already explained at [49] above), the SSAT proceeded to consider the question of whether it would be just and equitable to make a departure from the administrative assessment. In this context the SSAT made the following finding in relation to the father (at the sixth dot point in [75]):
He injured his neck playing rugby in 2010 (He has produced CT scan and MRI evidence of degenerative changes in to his neck and a report from a general practitioner, dated 19 August 2012, that says he has pain to the right arm, which is made worse with computer work. Mr [Penman] told the Tribunal that computer work causes headaches but the general practitioner did not mention this. Mr [Penman] is to see a specialist about the condition in November 2012. He treats the pain caused by the condition with medication prescribed for his mother and supplied to him by her. He has also been having acupuncture since 2011);
There was no further reference in the SSAT’s reasons to the issue of the father’s health and its impact on his earning capacity. However, the issue became the subject of Ground 11 in the father’s appeal to the Federal Circuit Court with the ground being:
The Applicant was denied natural justice in the presentation of his case and the ability to properly call medical evidence.
Judge Scarlett discussed this ground at some length before concluding that the ground had not been made out. His Honour’s discussion is as follows:
146. The Appellant’s complaint is that the Tribunal failed to allow him an extension of time to obtain and provide further or additional medical evidence about his capacity for work. He had given evidence at the hearing on 18^th July that he had three crushed vertebrae in his neck from a rugby injury and had provided medical evidence to that effect.
147. The Appellant forwarded a report from a Dr [H] dated 17^th August 2012 in respect of an MRI scan and a report from Dr [M] dated 19^thAugust 2012. He had sought an extension of time on 14^thAugust to obtain and submit a medical report from a specialist to whom he had referred.
148. The Appellant’s letter seeking an extension of time to supply further medical evidence said, relevantly:
Before my doctor will provide legal evidence in this case he wishes to get further consultation and opinions. This will take some weeks, if the Tribunal is questioning the legitimacy of my neck injury I would request that they provide me the time to provide formal medical opinion. I am sure the tribunal understand the cost involved when dealing with doctors and the long delays and waiting periods for patients using Medicare.
I would be willing to submit to a medical examination at the SSAT expense and a doctor of the SSAT choosing.
149. However, the Tribunal wrote to him on 16^th August, denying that request.
150. The Tribunal’s letter said:
The Presiding Member has also refused to grant you an extension of time to provide additional medical evidence. However, it is open to discuss any additional medical information during the reconvened hearing of your application.
151. The Appellant submitted that, his capacity for work having been raised, the Tribunal should have allowed reasonable time to obtain further medical evidence.
152. Despite the Tribunal’s refusal to allow an extension of time, the Appellant submitted further evidence dated 17^th and 19^th August. Notwithstanding its refusal to allow an extension of time, the Tribunal took that evidence into consideration [Tribunal Reasons for Decision at [75]].
153. It was the Appellant who had raised the issue of his medical condition which led to his claim of incapacity to undertake work as an SAP consultant. The Transcript of the hearing shows a discussion of the medical issues at pages 83 to 89. What he wanted to do after the hearing of 18^th July was to obtain medical evidence that did not already exist. The reason why he wished to obtain additional evidence is made clear in his letter to the Tribunal of 19^th August 2012, where he sought an extension to provide detailed medical evidence of his neck injury:
The tribunal members made comment during the last hearing that my neck injury was minor and would have no bearing on my ability to undertake a career change.
154. It appears that the Appellant formed the impression that the evidence he had provided was not sufficient and he wanted the opportunity to get more evidence. Such a process could continue indefinitely. The Appellant did provide further evidence, which was considered by the Tribunal, even though it was submitted after the time when the Tribunal had refused to grant an extension of time.
155. The Appellant has not shown that he was denied natural justice in not being allowed further time to obtain more evidence which was not then in existence.
156. Ground 11 of the Amended Notice of Appeal has not been made out.
It will be recalled that by Ground 4(a) before us, the father asserts that the primary judge erred in finding that the report of Dr M dated 19 August 2012 was considered by the SSAT.
We can only say about this complaint, as it appears in Ground 4(a), that it is without foundation. Both the reasons of the SSAT and the transcript of the hearing before the SSAT on 3 September 2012 (at pp 10-14) show that the SSAT did consider Dr M’s report dated 19 August 2012, and therefore Judge Scarlet was not wrong in so finding (as he can be seen to have done in the above quoted paragraphs from his reasons for judgment).
To the extent that, and notwithstanding the actual terms of Ground 4(a) before us, the father’s complaint is in fact, or is also, directed to Judge Scarlett’s conclusions in [154] and [155] of his reasons that the SSAT did not deny natural justice to the father in refusing to permit him to obtain further medical evidence beyond that which was available on 3 September 2012, we can say only that we entirely agree with what his Honour said in [154] and [155] of his reasons.
It is also relevant in this context to refer to his Honour’s discussion of, and conclusion in relation to, Ground 14 before him. That ground asserted that the SSAT “failed to give proper weight or consideration to the fact that the Applicant’s medical condition impacts the earning capacity”.
His Honour said about this ground:
173. The very wording of the ground indicates that the Appellant is seeking to embark on merits review, which is impermissible.
174. It is well established that judicial review of administrative decisions does not extend to a review of the factual merits of the case.
Then after referring to observations by various members of the High Court in Attorney-General (NSW) v Quin (1990) 170 CLR 1, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, his Honour concluded:
178. A ground, such as this one, that complains that an administrative decision-maker failed to give “proper weight or consideration” is asking the Court to embark on a review of the merits of the decision. As long as there is evidence about a particular fact or set of facts, the weight to be given to that evidence is purely a matter for the administrative tribunal.
179. Consequently, this ground of appeal fails.
We find no error in his Honour’s approach to Ground 14, or indeed, to the overall issue of the father’s health and its impact on his earning capacity. The grounds directed to this issue must therefore fail.

Conclusion in relation to the appeal and the application for leave to appeal

It is unfortunate that his Honour having effectively complimented the father on his written submissions at the hearing, was then very critical of those submissions, and also of the father’s grounds of appeal, in the latter part of his reasons for judgment (at [108] to [113]). Furthermore, his Honour’s criticism of the submissions in the latter part of his reasons is somewhat curious, given that he had earlier in his reasons devoted some twenty-eight paragraphs of his reasons (at [44] to [72]) to outlining the father’s written submissions without any significant criticism.
However, given his Honour’s efforts in his initial consideration of the written submissions of the father to identify the father’s essential complaints in relation to the SSAT decision (which included the identification by his Honour of the additional ground of appeal of apprehended bias), and given also the comprehensive attempts which his Honour made to deal with the grounds of appeal (other than the first seven), we are not persuaded that even if his Honour’s approach to the father’s submissions and certain of his grounds of appeal contained any element of procedural unfairness (which we do not accept that it did), that our intervention in his Honour’s decision would be justified.
Moreover we are fortified in this view because, notwithstanding the father’s claims that he has suffered procedural unfairness, he only raised before us two complaints about actual matters relating to his child support assessment; those matters being the financial position of his mother and the impact of his health on his earning capacity; and we have found no substance in those complaints.
The appeal would therefore be dismissed.
We would, however, grant the father leave to appeal because of the apparent inconsistency, which he identified, in his Honour’s approach to his written submissions when they were first received and then when they were considered for purposes of the preparation of his Honour’s judgment. This apparent inconsistency was a matter which certainly required appellate consideration, and thus we would grant leave to appeal.

Costs

At the conclusion of the hearing before us, we received submissions in relation to the costs of the appeal.
In the event that the appeal was to fail, which it has, the Registrar sought that there should be a costs order against the father. The father opposed such an order on the basis of the hardship which it would impose on him because of his financial position.
Although we consider the matter to be finally balanced, we have concluded that overall the circumstances would not justify the making of an order for costs against the father, particularly having regard to the basis on which we were prepared to grant the father leave to appeal.

Ryan J

I agree with Finn and Strickland JJ that the appeal should be dismissed and, subject to one qualification, with their Honour’s reasons for doing so. That qualification relates to their Honour’s conclusions at [74] and [78] that his Honour’s remarks recorded at [20] of these reasons are inconsistent with [108] to [133] of his Honour’s reasons for judgment. In my view, his Honour’s complimentary remarks make two points. First, that the father is to be complimented for the effort he put into his written submissions. Secondly, based on the father’s written submissions his Honour understood the various issues that the father wanted the Court to consider. The remarks are entirely silent about the grounds of appeal and do not speak to whether or not the submissions accord with the grounds, are prolix or repetitive. It is to these matters that [108] to [133] of his Honour’s reasons are directed; including, in particular, whether Grounds 1-7 inclusive are so lacking in particularity that they could not establish error in the relevant sense.
For the argument in favour of inconsistency to have been made good, the father needed to identify what questions of law were discernible from Grounds 1-7 (when read with his written submissions) and which he was unable to pursue before his Honour or which his Honour failed to appreciate. His inability to do so is telling and satisfies me that there is no inconsistency between his Honour’s remarks and his reasons for judgment.
It should also not pass without comment that approximately three months prior to the hearing before his Honour, the Registrar filed written submissions and at [3] to [6] highlighted the lack of particularity in various of the grounds of appeal relied upon by the father and that the majority were incapable of establishing error. Thus, the father had approximately three months’ notice that there was a live issue about whether the majority of his grounds of appeal so lacked particularity they were meaningless. Yet, no steps were taken by the father to rectify this obvious deficiency.
Because I am not satisfied that his Honour’s remarks and reasons for judgment are inconsistent and I otherwise agree with what Finn and Strickland JJ have said in relation to the lack of merits in the appeal, it follows that I would not grant the father leave to appeal. On that basis, and notwithstanding the father’s argument that an order that he pay the Registrar’s costs would impose financial hardship on him, I would order that he pays the Registrar’s costs.

I certify that the preceding eighty five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland and Ryan JJ) delivered on 15 July 2015.

Associate:

Date: 15 July 2015