Child Support Registrar and Hartwell
[2019] FamCA 279
•3 May 2019
FAMILY COURT OF AUSTRALIA
| CHILD SUPPORT REGISTRAR & HARTWELL | [2019] FamCA 279 |
| FAMILY LAW – CHILD SUPPORT – Where Application by Child Support Registrar seeking the Respondent pay child support arrears – Where order made on 17 September 2018 that any application made by the Respondent to adjourn the trial due to medical incapacity be brought no later than 1 February 2019 – Where the Respondent provided reports from his medical specialists, but no application was made – Where no appearance from Respondent – Where court proceeded with the hearing – Where decision of whether or not to adjourn proceedings remains with the Judge – Where court satisfied that the child support debt and penalties claimed under the certificate are due by the Respondent – Where Respondent has no ‘right’ to choose whether to be subject to the obligations imposed by the Child Support Scheme – Where orders made for enforcement as sought by the Registrar –Where order for costs. |
| Judiciary Act 1903 (Cth) ss 78B Child Support (Registration and Collection) Act 1988 (Cth) ss 116 Commonwealth Powers (Family Law – Children) Act 1986 (NSW) ss 3 Taxation Administration Act 1953 (Cth) Family Law Act 1975 (Cth) ss 117 Family Law Rules 2004 (Cth) r 1.04, 1.07, 1.08, 20.07 |
| Strahan & Strahan [2019] FamCAFC 31 Thurston & Thurston (No 2) [2012] FamCAFC 222 Union Steamship Company of Australia v King (1988) 166 CLR 1 |
| APPLICANT: | Child Support Registrar |
| RESPONDENT: | Mr Hartwell |
| FILE NUMBER: | BRC | 5033 | of | 2014 |
| DATE DELIVERED: | 3 May 2019 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns via video link to Brisbane |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 1 April 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Del Villar |
| SOLICITORS FOR THE APPLICANT: | Australian Government Solicitor |
| THE RESPONDENT: | No appearance |
Orders
The Respondent pay the Applicant the sum of $70,657.30 (“the Child Support Debt”), being a registered maintenance liability of $30,885.46 in arrears of child support and $39,771.84 in late payment penalties as evidenced by a Certificate issued under s 116(2) of the Child Support (Registration and Collection) Act 1988.
The Respondent pay the Applicant the Child Support Debt within 90 days of the date of these orders.
The Respondent pay the Applicant’s costs to be agreed and if not agreed to be taxed (“the Costs”).
Pending full payment of the Child Support Debt and the Costs:
4.1pursuant to order 2 of these orders made by Judge Spelleken of the Federal Circuit Court in these proceedings on 23 July 2014, the Respondent continue to be restrained, without the prior written consent of the Applicant, from selling, assigning, transferring, encumbering by mortgage or charge or dealing in any way with his interest in:
4.1.1the real property at “E Street, Suburb F in the State of New South Wales,” more particularly described as Lot … in Deposited Plan … Parish of …, County of … contained in Certificate of Title Folio …86 registered in the name of the Respondent (“the Real Property”).
4.2the Applicant is at liberty to serve a copy of these orders on the mortgagee, Australian and New Zealand Banking Group, and any other person who claims an interest in the Real Property.
If the Respondent defaults in making any of the payments ordered to be paid under these orders or deals with the Real Property in breach of these orders, the amount of the total debt then outstanding shall be immediately due and payable.
Otherwise all extant applications are dismissed, and the matter is removed from the list of active pending cases.
AND THE COURT NOTES THAT:
A.Any monies payable by the Respondent pursuant to these orders are in addition to the ongoing liability to pay child support as assessed or varied from time to time.
B.If the Respondent defaults in making any of the payments ordered to be paid under these orders or deals with the real or personal property in breach of these orders, the Applicant may proceed to enforce the total debt then owing in accordance with Chapter 20 of the Family Law Rules 2004.
C.If the Respondent neglects or refuses to comply with or disobeys their obligations under these orders, the Respondent may be liable to an order for costs, sequestration of property, punishment for contempt or such other order as the Court considers appropriate.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Child Support Registrar & Hartwell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: BRC5033/2014
| CHILD SUPPORT REGISTRAR |
Applicant
And
| MR HARTWELL |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 10 June 2014, the Child Support Registrar (“the Registrar”) commenced these proceedings in the Federal circuit Court of Australia by Application in a Case, seeking orders which, in substance, required Mr Hartwell (“the Respondent”) to pay arrears of child support which were then said to be outstanding.
The matter thereafter had a complicated history which I shall detail shortly, however, on 17 September 2018 I directed that the trial of this matter be listed to commence at 9:30am on Monday 1 April 2019, with an anticipated hearing time of two to three days. Although the Respondent did not then appear, nonetheless I determined to proceed with the hearing of the Registrar’s application notwithstanding his absence, and at the conclusion of that hearing, reserved my decision. This is that decision and the reasons for it.
BACKGROUND FACTS
The Respondent was born on in 1965, and hence is presently 54 years of age. According to an affidavit of Ms D filed 10 June 2014, at that time the Respondent was working as a legal practitioner in City H. It appears as though sometime thereafter, on a date which is not clear on the material, the Respondent ceased practise.
The Respondent has been assessed by the Registrar as liable to pay child support for two children, being X, born in 1999 to a Ms J, and Y, born in 2005 to a Ms G. When the proceedings commenced in 2014, the total of the Respondent’s liability, including arrears and late payment penalties, was said to be $113,989.47. However by the time the matter came before me on 1 April 2019, that amount had reduced to $70,657.30, seemingly in large part because tax refunds, which would otherwise had been paid to the Respondent, have been garnered towards reducing the arrears instead.
PROCEDURAL HISTORY
I have already observed that these proceedings were commenced by Application in a Case filed 10 June 2014. By his Response filed 31 July 2014, the Respondent sought two declarations, to the effect that he was not liable to be administratively assessed for child support, and sought the repayment of monies said to have been illegally seized from him for the purposes of child support. On what appears likely to have been the first return date of the matter, Judge Spelleken directed notices to be given to the Attorneys-General of the Commonwealth and States under s 78B(2)(b) of the Judiciary Act 1903, and transferred the matter to this court.
A number of events before a Registrar then transpired, although it is unnecessary to traverse the balance of the procedural history of the matter until 2 August 2017 when, as I understand it, Forrest J directed that the matter be listed before Berman J for a one day hearing on Monday 9 October 2017. Thereafter on 3 October 2017, Carew J adjourned the hearing to a date and time to be advised, and it appears as though it was next administratively listed for a one-day hearing on 4 December 2017 before me. However in view of my concerns that the matter was of a compass which, if it were to indeed proceed, would take much longer than a day, on 30 November 2017 I vacated that hearing, and reserved the dates of 30 April to 3 May 2018 for the hearing, and directed that the outstanding applications be listed for mention only on 14 February 2018. On that date the Respondent did not appear, and accordingly I listed the matter to commence on Monday 30 April 2018 for hearing. The further three days were reserved to accommodate the potential that the considerable arguments sought to be ventilated by the Respondent were in fact pressed.
By subsequent affidavit filed 25 April 2018, the Respondent explained that he did not appear on 14 February 2018 because he was unwell, having suffered some cardiac problems in January 2018, and that he had been advised to avoid all stress.
On 27 April 2018 I brought the matter back on for mention, given my concerns arising out of the Respondent’s affidavit filed 25 April. Although the Respondent did not then appear, in light of the lack of clarity surrounding his health, and the improbability that he would be fit to attend the hearing on 30 April, on that occasion I vacated the hearing for 30 April, and listed the matter for further mention on 12 June 2018. On that date, a solicitor appeared for the Respondent. I made orders requiring appropriate material in relation to the Respondent’s health to be filed by 26 June 2018, and adjourned the matter for further mention until 29 June.
On 26 June 2018, the Respondent (by a solicitor) filed an Application in a Case seeking an adjournment of the 29 June date, and asking that the matter be set down for further mention in September 2018. That Application in a Case was made returnable on 29 June, and although there was then no appearance by the Respondent, I made further orders requiring the Respondent to make file and serve reports dealing with his medical condition and, as requested by the Respondent, listed the matter for further mention on 17 September 2018.
On 17 September the Respondent filed an affidavit annexing some reports from his treaters, arguably in conformity with those that I required to be filed by my 29 June 2018 orders. However again the Respondent did not appear on 17 September, whether in person or by a solicitor, and on that occasion I made the following orders:
1.That the trial of this matter be listed to commence at 9:30am on Monday 1 April 2019 in Cairns by video link to Brisbane, with an anticipated hearing time of 2 to 3 days.
2.That any application by the Respondent to adjourn the trial on the basis of his alleged medical incapacity is to be made, filed and served no later than 4:00pm on 1 February 2019.
No such application for an adjournment was made by 1 February, or indeed at all.
On 7 March 2019 the solicitors for the Registrar wrote to the Respondent reminding him of the orders requiring any application for an adjournment to be filed by 1 February 2019, noting that the timeframe had not been complied with, and indicating that the trial of the matter would proceed as ordered. Correspondence containing a similar message was sent by express post on that day as well. There is no evidence of any reply being received.
Then, on 28 March 2019, the solicitors for the Registrar further emailed the Respondent providing an updated list of authorities. On the following day the Respondent filed and served an affidavit of himself sworn on 26 March 2019. It annexed correspondence or reports from his general medical practitioner, his psychologist and his cardiologist. Other than annexing those documents, the affidavit contained no substantive evidence.
When the matter commenced on 1 April 2019, the Respondent did not appear, nor did anyone seek to appear on his behalf. Self-evidently, no application to adjourn the hearing had been made, although the affidavit filed on 29 March may have been able to be deployed in support of such an application, had one been made.
At that hearing, counsel for the Registrar correctly identified that there was no application before me to adjourn the hearing, and accordingly I did not need to determine such an application. On the other hand I indicated to counsel that I had determined to proceed with the hearing of the matter in the absence of the Respondent, and would give reasons for doing so in due course. It is convenient to publish those reasons in this judgment, as follows.
THE DECISION TO PROCEED WITH THE HEARING
Given the material that had been intermittently filed by the Respondent identifying ongoing cardiac issues, but mindful of his frequent failure to appear at administrative hearings, the purpose of the order which I made on 17 September 2018, was to ensure that any application to adjourn the trial would be made well in advance of 1 April, and hence that time, if an adjournment were granted, able to be devoted to other cases. As he had done in the past, the Respondent chose not to comply with that timetable, but rather, on the eve of the hearing, simply filed further material pertaining to his medical condition.
Judicial resources are limited and strained. Particularly in this Court, at any given time, there are many more cases ready to be heard, than there are judges available to hear them. Accordingly a court has an obligation to the community to ensure that it uses its resources in the most effective manner, and individual judges have that obligation as well.
The day has long gone when litigants determine the pace of litigation, and whether it comes to trial at all. For instance Rule 1.04 of the Family Law Rules provides that the main purpose of them “is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case.” Further, to achieve that main purpose, the Court is to apply the Rules in a way which gives an appropriate share of the Court’s resources to a case, taking into account the needs of other cases[1] and there is an obligation on each party to litigation, in order to achieve the main purpose, to ensure that they are ready for Court events.[2] Also relevant to achieving the main purpose, is an obligation on each party to give notice, as soon as practicable, of an intention to apply for an adjournment or cancellation of a Court event.[3] Self-evidently, there is also an obligation on parties in achieving the main purpose to comply with any orders made.[4]
[1] Rule 1.07(f).
[2] Rule 1.08(1)(c).
[3] Rule 1.08(1)(f).
[4] Rule 1.08(1)(l).
Those sorts of considerations are by no means unique to the family law courts, but are common in most civil jurisdictions. Indeed, those sorts of matters are also well established by powerful authority quite independently of the Rules.
Most recently in Strahan & Strahan [2019] FamCAFC 31 at [61], the Full Court of this Court summarised those as follows:
61. The principles established by decisions of the High Court such as Sali v SPC Limited and, later, Aon Risk Services Australia Limited v Australian National University can be seen conveniently summarised for present purposes in Rowe v Stoltze:
In a curial setting there is no absolute right to have an action heard and determined on its merits. What the rules of procedural fairness require is that each party be provided with a reasonable opportunity to be heard: International Finance Trust Co Ltd v New South Wales Crime Commission. And what is a reasonable opportunity is to be judged nowadays not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court: see Aon Risk Services Australia Ltd v Australian National University; Brocx v Hughes. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources: Sali v SPC Ltd cited with evident approval in Aon. Moreover, as between parties to an action what constitutes a reasonable opportunity to be heard must be judged having regard to the effect of undue delay, including the stress and costs caused by having litigation hanging over a defendant's head for an undue period: see Aon.
(Citations omitted) (Emphasis added)
In the context of litigants with ill health, there is a very useful, relatively recent, English authority of Decker v Hopcraft [2015] EWHC 117. At [21]-[30] Warby J set out the relevant principles as follows:
21. The decision whether to adjourn a hearing, and the decision whether to proceed with a hearing in the absence of a party, are both case management decisions. The court is required to exercise a discretion, in accordance with the overriding objective, in the light of the particular circumstances of the individual case. The authorities provide valuable guidance, however.
22. A court faced with an application to adjourn on medical grounds made for the first time by a litigant in person should be hesitant to refuse the application (Fox v Graham Group Ltd, The Times, 3 August 2001 per Neuberger J, as he then was). This, however, is subject to a number of qualifications. I focus on those which seem to be of particular relevance in the present case.
23. First, the decision is always one for the court to make, and not one that can be forced upon it. As Norris J observed in Levy v Ellis-Carr [2012] EWHC 63 at [32]:Registrars, Masters and district judges are daily faced with cases coming on for hearing in which one party either writes to the court asking for an adjournment and then (without waiting for a reply) does not attend the hearing, or writes to the court simply to state that they will not be attending. Not infrequently "medical" grounds are advanced, often connected with the stress of litigation. Parties who think that they thereby compel the Court not to proceed with the hearing or that their non-attendance somehow strengthens the application for an adjournment are deeply mistaken. The decision whether or not to adjourn remains one for the judge.
24. Secondly, the court must scrutinise carefully the evidence relied on in support of the application. In Levy v Ellis-Carr at [36] Norris J said this of the evidence that is required:
Such evidence should identify the medical attendant and give details of his familiarity with the party's medical condition (detailing all recent consultations), should identify with particularity what the patient's medical condition is and the features of that condition which (in the medical attendant's opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party's difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case).
25. Norris J's approach in Levy v Ellis-Carr was expressly approved by Lewison LJ in Forrester Ketley v Brent [2012] EWCA Civ 324 [26], upholding a decision of Morgan J to dismiss an application to adjourn on medical grounds. It was followed by Vos J (as he then was) in refusing an application to adjourn the trial in Governor and Company of the Bank of Ireland v Jaffery [2012] EWHC 734 (Ch) [49].
26. In the context of what amounts to proper medical evidence it is pertinent to note two points made by Vos J in the Bank of Ireland case. At [19], referring to a GP's letter running to some 11 lines which confirmed that the defendant had been signed off work for three weeks, he said this: "It is important to note that a person's inability to work at a particular job is not necessarily an indication of his inability to attend court to deal with legal proceedings. It may be but it may also not be." At [58] Vos J indicated that he took into account the contents of the defendant's litigation correspondence, observing that he "has been communicating with the court and with the claimants over a lengthy period in the most coherent fashion. He is plainly perfectly capable of expressing his point of view, taking decisions and advancing his case".
27. The third main qualification to Neuberger J's observations in Fox v Graham is one that is implicit, if not explicit in what Norris J said in Levy v Ellis-Carr: the question of whether the litigant can or cannot participate in the hearing effectively does not always have a straightforward yes or no answer. There may be reasonable accommodations that can be made to enable effective participation. The court is familiar with the need to take this approach, in particular with vulnerable witnesses in criminal cases. A similar approach may enable a litigant in poor health to participate adequately in civil litigation. But the court needs evidence in order to assess whether this can be done or not and, if it can, how.
28. Fourthly, the question of whether effective participation is possible depends not only on the medical condition of the applicant for an adjournment but also, and perhaps critically, on the nature of the hearing: the nature of the issues before the court, and what role the party concerned is called on to undertake. If the issues are straightforward and their merits have already been debated in correspondence, or on previous occasions, or both there may be little more that can usefully be said. If the issues are more complex but the party concerned is capable, financially and otherwise, of instructing legal representatives in his or her place and of giving them adequate instructions their own ill-health may be of little or no consequence. All depends on the circumstances, as assessed by the court on the evidence put before it.
29. The fifth point that may be of significance here is that, sometimes, it may appear to the court at the outset or after hearing some at least of the rival arguments that in truth the matter before it is one on which one or other side is bound to succeed. The closer the case appears to one or other of these extremes the less likely it is that proceeding will represent an injustice to the litigant. Thus, in Boyd & Hutchinson (A Firm) v Foenander [2003] EWCA Civ 1516 the Court of Appeal proceeded with the hearing of an appeal on the basis that it would refuse an adjournment if it concluded, as it did, that the appeal had no real prospect of success. This appears consistent with the conclusions of Neuberger J in Fox v Graham that where the court refuses a litigant in person an adjournment it may proceed in his absence if satisfied either (a) that it is right to grant the applicant the relief sought or (b) that the application is plainly hopeless.
30. I accept the point made by Ms Wilson, in order to assist the court, that when considering an adjournment application the court's approach should to an extent be affected by whether the matter involves applications of a case management nature, or final determinations on the merits such as an order striking out a statement of case or part of it, where Article 6 of the Convention is engaged. The court will need to be more cautious in cases failing within the second category. Nonetheless, the factors I have identified above are relevant in both contexts.
I respectfully agree with that most helpful articulation of relevant principles, which does not seem to me to require any modification for application in Australia.
Turning then to the instant case, it simply cannot be overlooked that this litigation has been pending since 10 June 2014. That is an inordinate amount of time for what is, effectively, at least from the Registrar’s perspective, a relatively simple debt collecting procedure. It also cannot be overlooked that the litigation involves arrears of child support, intended to be paid in respect of children for their benefit during their childhood. I underscore that comment by observing that one of the children is now 19 years of age.
In the material filed by the Respondent on the eve of the 1 April 2019 hearing, there was no direct explanation given as to why my orders of 17 September 2018, insofar as they required any application for an adjournment to be made by 1 February 2019, were not complied with. Likewise, there was no explanation given as to why, as he has done in the past, the Respondent had been unable to instruct solicitors to appear for him to make such an application in a timely way. Rather there was, at best, an inferential explanation offered, namely, that the Respondent was too unwell to do anything whatsoever in connection with these proceedings.
Consistent with the principles identified by Warby J in Decker & Hopcraft (supra), in the past I have acceded, on more than one occasion, to the implicit or express application by the Respondent to adjourn the hearing of these proceedings. However this is no longer a new matter raised by the Respondent. Further, his position is equally consistent with a desire to avoid paying child support, or at least to indefinitely defer the determination of the Registrar’s proceedings.
Against that general background I turn to consider the affidavit filed by the Respondent on the eve of the 1 April 2019 hearing. It appended a report of his general medical practitioner, Dr K, dated 25 March 2019, a report of a Mr L, a psychologist who is providing treatment for him, which is undated but appears to be written sometime in 2019, and a report of the Respondent’s cardiologist, Mr M, dated 13 March 2019.
The general medical practitioner advises that the Respondent has “moderate heart damage” albeit is of the opinion that the Respondent “who is self-represented is unable to participate in these proceedings…” He went on to opine that the Respondent “is not fit to attend Court in 2019.” Although saying that the Respondent would be reviewed in September 2019, he did not venture any prognosis as to when he may be able to attend and participate in Court proceedings, but somewhat pessimistically said that “the ongoing stress of having this matter hanging in the background is only delaying and further complicating [the Respondent’s] recovery.”
The psychologist’s report is bristlingly adversarial. It even includes the following sentence: “[w]hy this matter was not dismissed last year to allow [the Respondent] the opportunity to make a full recovery is a question that I am considering referring to the appropriate authorities.” Equally troubling is his prognosis that he “holds concerns for [the Respondent’s] ability to ever enter a Courtroom situation again or function at the level considered appropriate for a legal practitioner.” Leaving aside that use of the word “dismissed” may have been ill advised, the impression one has is that Mr L is a strident advocate for the Respondent, and is not confident that these proceedings will ever be able to be concluded with his participation.”
On the other hand, the cardiologist’s report did not speak to the Respondent’s ability to engage in these Court proceedings. He simply noted that when he last reviewed the Respondent (presumably around the date of the report, but that is unclear) he “appeared stable cardiac wise. He had no recent symptoms of angina. I noted that .. the anxiety appears to be fairly stable at present.” He had arranged a further review of the Respondent in a further six month period.
Leaving aside the clear advocacy which the general medical practitioner and psychologist were making on behalf of the Respondent, what is particularly worrying is the absence of any indication of when the Respondent might be able to continue these proceedings. Of even greater concern is the psychologist’s concern that the Respondent may never be able to participate in them again. As the Full Court in Thurston & Thurston (No 2) [2012] FamCAFC 222 said, that is a significant fact to be considered in an adjournment application.[5]
[5] At [76].
Also relevant to my decision to proceed was the fact that the Court is not altogether without articulation of the case to be mounted by the Respondent. That is because, on 30 December 2015, he filed an Outline of Submissions extending to 57 paragraphs, albeit I acknowledge that he sought to supplement those submissions orally.
The final matter of relevance is, by reference to that outline of submissions, and arguments advanced in written submissions by the Registrar, that the Respondent’s case is not merely novel, but very weak. I will explain in due course my reasoning behind that conclusion, but plainly, the strength or otherwise of a case must be a relevant consideration in considering whether, at the instance of the party mounting the weak defence, to grant what appears to be an indefinite adjournment of proceedings seeking the recovery of a debt.
I should make it plain that in concluding to proceed with the hearing, I did not place any weight upon the fact that the Respondent has in his material, at times, explained that his present means of income (at least at the time of the material being prepared) was from assisting parties to reach agreements in relation to child maintenance outside of the child support system. It is not possible to draw any inference adverse to him by virtue of that fact, albeit that it may be consistent with an entrenched and trenchant opposition to child support generally.
THE REGISTRAR’S APPLICATION
Overview
As ultimately articulated, the orders sought by the Applicant were relatively benign. They were, in substance:
·To order the Respondent to pay the sum of $70,657.30 within 90 days:
·For the Respondent to pay the Applicant’s costs to be agreed and if not agreed taxed;
·To maintain injunctions ordered by Judge Spelleken on 23 July 2014;
·To make dealing with real property enjoined by those injunctions an event of default, accelerating the 90 day payment period.
Although plainly the ultimate weapon available to the Registrar is to sell the Respondent’s home in Sydney, expressly that is not an order which is sought by this current application. Rather it is only the establishment of the debt, and the requirement that it be paid within 90 days, that is the substantive relief sought.
Source of power
The powers relied upon by the Registrar to make such orders are contained in Rule 20.07, which relevantly provides:
20.07 The Court may made an order:
(a) Declaring the total amount owing under an obligation;
(b)That the total amount owing must be paid in full or by instalments and when the amount must be paid;
…
…
(e)To prevent the dissipation or wasting of property;
(f)For costs;
…
The existence of the debt
In this case, the Registrar does not seek a declaration of the total amount owing by the Respondent, but rather proceeds by way of a certificate issued by the Registrar under s 116 of the Child Support (Registration and Collection) Act 1988, which by sub-sections (2) and (3) provides:
(2) Any production of a Certificate in writing signed by the Registrar, certifying that amounts specified in the Certificate was, on the date of the Certificate, due and Payable by a specified person to the Commonwealth in relation to a specified registerable maintenance liability or specified carer liability or under a specified provision of Part IV, is prima facie evidence of the matter stated in the Certificate.
(3) Without limiting the generality of sub-section (2), a Certificate under that sub-section may specify the amount of the outstanding balance of one or more child support debts as described in s 67.
The particular certificate in evidence was signed by a Mr Volkers, who therein describes himself as the General Manager, Child Support Smart Centres Division. However, also in evidence was a specification dated 23 November 2015 made by the Secretary of the Commonwealth Department of Human Services, that Mr Volkers “is to be the Child Support Registrar.”
The most recent certificate of Mr Volkers pertains to 1 April 2019, and provides as follows:
I hereby certify that the following amounts totalling $70,657.30 are due and payable by Mr Hartwell and remain unpaid as at the 1st day of April 2019 in respect of registered maintenance liabilities:
·The child support debt $30,885.46;
·Penalties of $39,771.84.
This amount is payable to the Commonwealth in relation to a registerable maintenance liability under s 30 (Child Support Debt) and s 67 (Penalties) of the Child Support (Registration and Collection) Act 1988.
It therefore follows that the effect of s 116(2) is that the matters stated in the certificate are prima facie evidence of them.
Out of an abundance of caution, Mr Del Villar, who appeared as counsel for the Registrar, also took me through the chain of statutory provisions which underpin the existence, or otherwise, of a child support debt, but it is unnecessary to traverse them in these reasons. However I should say that I am satisfied that the child support debt and the penalties claimed in the most recent certificate, are indeed due by the Respondent to the Registrar by virtue of the application of the provisions referred to by counsel.
The Respondent’s defences
I do not understand that the Respondent takes issue with the quantum of the debt, but rather advances two arguments which he says are fatal flaws to the existence of any debt in relation to these children. The first argument, as I understand it, is that ex-nuptial children in the State of New South Wales are not covered by the provisions of the relevant Commonwealth child support legislation, and therefore the Respondent is not liable to be assessed by the Registrar in relation to these two children. The second argument, which is less clear, is that in some way, the use by the Registrar of the Respondent’s tax file number was not authorised by him, but how that is said to infect the assessments in any way is difficult to fathom.
Turning firstly to whether ex-nuptial children living in New South Wales can be the subject of assessment for child support under Commonwealth legislation, it is true that, absent a referral from the States, or adoption by the State of a Commonwealth law, under of the Constitution, the Commonwealth has no power to make laws that extend to the maintenance of ex-nuptial children. However the New South Wales Parliament, by the Commonwealth Powers (Family Law – Children) Act 1986 expressly did refer its power over such children to the Commonwealth, by s 3(1)(a) of that Act, in the following terms:
3 Reference of certain matters relating to children
(1) The following matters, to the extent to which they are not otherwise included in the legislative powers of the Parliament of the Commonwealth, are referred to the Parliament of the Commonwealth for a period commencing on the day on which this Act commences and ending on the day fixed, pursuant to section 4, as the day on which the reference under this section shall terminate, but no longer, namely:
(a) the maintenance of children and the payment of expenses in relation to children or child bearing;
(b) …
I am well satisfied that such a referral extends to ex-nuptial children, and specifically child maintenance in relation to them.
To the extent that the Respondent says that the States cannot refer to the Commonwealth powers on subjects that were not known at Federation or a subsequent time, such an argument would plainly be wrong.[6]
[6]Union Steamship Company of Australia v King (1988) 166 CLR 1.
The second argument that seems to be relied upon by the Respondent is related to his asserted lack of permission for his tax file number to be used in some way in relation to child support issues.
The Respondent has previously run a related argument before the New South Wales Supreme Court.[7] That case had to do with the Respondent’s failure to lodge tax returns, which resulted in him being issued with a Court Attendance Notice charging him with 13 offences under the Taxation Administration Act 1953. Before the Supreme Court judge, the Respondent contended that he was not required to file a tax return, perhaps because, as I read the judgment, any refund would then be liable to be garnisheed to meet his child support obligations, as indeed occurred.
[7] In 2015.
At all events, in his Statement of Claim, the Respondent pleaded that he had a right not to consent to his personal information and taxable income details to be provided by the tax office to any other government agency. The Supreme Court judge roundly rejected that contention at [30] as follows:
30. The short answer to all of these assertions is that there is no such “right” of a kind pleaded ... In his oral submissions, [the Respondent] sought to articulate that he had a “right” to choose whether to be subject to the obligations imposed by the Child Support Scheme. This appears to reflect the form of the right that was referred to in [the Statement of Claim]. However the laws establishing the scheme and the relevant tax laws operate according to the terms and not according to [the Respondent] or any other persons preference choice or consent. In the absence of there being any legal basis whatsoever for the form of “right” that is asserted, there is no basis for impugning the validity of the approved form that is applicable to tax payers’ returns.
To the extent that the Respondent raises a similar contention in these proceedings, I reject it for the same reasons as did the Supreme Court judge.
Should there be an order in this case
I then turn to the question of whether or not there should be an enforcement order made in relation to the child support debt. It seems to me that there is a general discretion to make, or not to make, an order under Rule 20.07, which needs to be exercised judicially.
I am satisfied that the arrears and penalties are as claimed in the certificate. It is plain the Respondent does not intend to voluntarily make any payment in respect of his child support obligations. In any event, the orders which are sought by the Registrar are, as I have noted already, relatively benign. Moreover, it is the only means by which the path of actual recovery can be commenced, absent further tax refunds being payable to the Respondent. The proposed orders are reasonable, in that they give the Respondent an opportunity to make good his obligations of child support within 90 days. That should be sufficient time for him to try to arrange his affairs in a way to discharge the debt.
The iron fist within the velvet glove is however, as I have indicated, that if he does not pay the arrears, the Registrar intends to seek to sell the Respondent’s home. However no part of the orders which are asked of me does anything more than lay the groundwork for such action, and accordingly it does not seem to me that any proportionality between the amount of the debt, and the consequences of the enforcement action, presently arises for consideration. In any event, as counsel for the Registrar said during the course of submissions, the reality is that there is no other means by which the Registrar presently can seek to satisfy the outstanding debt.
I am satisfied that I should exercise my discretion to make orders for enforcement as sought by the Registrar, and will do so.
COSTS
The Registrar also seeks an order for costs against the Respondent. It was accepted that the costs power in applications such as this is governed by s 117 of the Family Law Act. However I also accept that an application such as that which I have just disposed of is not typical of matters to which s 117 commonly applies, in that it is an application for enforcement of an outstanding obligation, which has been constantly and flagrantly refused to be complied with by the Respondent.
By reference to the matters in s 117(2A) I observe as follows.
It appears as though the Respondent may not presently be in employment. He appears to have significant equity in a residential property in Sydney, which is said to be valuable. Whilst of course the position of the Commonwealth is far financially superior to that of the Respondent, I am satisfied that the Respondent is nonetheless in reasonable financial circumstances.
The Respondent was not in receipt of Legal Aid, nor was the Registrar.
The conduct of the Respondent in these proceedings is relevant. I stay to repeat again that the proceedings have been on foot for nearly five years. They have not come to conclusion for a variety of reasons, for which the Respondent must have considerable responsibility. Particularly he has sought to rely upon arguments which, as I have analysed them in these reasons, are without merit. He has plainly sought to do so to stave off the recovery of the debts against him. By mounting such arguments, he has inevitably increased the Registrar’s costs.
Whilst the proceedings were not necessitated by the failure of the Respondent to comply with previous orders of the Court, they were necessitated by his failure to comply with his obligations to pay child support.
The Respondent has been wholly unsuccessful in the proceedings.
There apparently was no offer to settle which was sought to be relied upon by the Commonwealth.
Weighing all of those matters in the balance tells strongly in favour of an order for costs in this case, and I will so order
CONCLUSION
For these reasons I pronounce orders as set out at the commencement of this judgment.
I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 3 May 2019.
Associate:
Date: 3 May 2019
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