HARTWELL & CHILD SUPPORT REGISTRAR - [2016] FamCA 169

FAMILY COURT OF AUSTRALIA

HARTWELL & CHILD SUPPORT REGISTRAR

[2016] FamCA 169

FAMILY LAW – PRACTICE AND PROCEDURE – Oral application for adjournment – Where the applicant’s Application in a Case was filed three months ago – Where the applicant failed to attend Court either in person, or by phone without notice – Where counsel for the applicant had been instructed by the applicant that the matter was before the Court for a directions hearing – Whether the submission that there had been a “stuff up” is sufficient reason for adjournment – Where applicant chose not to appear by phone when offered the opportunity – Application dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Joinder – Where the applicant seeks to join the Federal Commissioner of Taxation to the proceedings – Where the Federal Commissioner of Taxation has allegedly served material upon the applicant during criminal proceedings in New South Wales – Where the applicant has not given evidence as to the kind of material that has been served upon him to support the proposition of a joinder – Where there is no sufficient legal or factual connection between the criminal proceedings in which the Federal Commissioner of Taxation is a party and proceedings in the Family Law Court – Application dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – Whether there is a real risk of prejudice to the applicant – Where the applicant seeks to stay Family Court proceedings pending the determination of criminal proceedings in the Downing Centre Local Court in New South Wales – Where there is no current listing in the in the Family Court before the trial dates in the Local Court – Where criminal proceedings scheduled for two days in March 2016 – Where the applicant’s assertion of risk of prejudice is speculation and without evidentiary basis – Application dismissed.

FAMILY LAW – COSTS – Between parties – Whether the application was wholly unsuccessful – Where the applicant failed to file and serve outline of submissions by the due date – Where the applicant failed to attend Court either in person, or by phone – Where the applicant failed to properly prepare a proper argument in support of it case – Where the financial situation of the applicant relevant in the determination of a cost order – Where the applicant owns property in Sydney in which he has equity – costs order made.

Family Law Act 1975 (Cth) s117
Family Law Rules 2004 (Cth)

Hartwell v Federal Commissioner of Taxation [2015] NSWSC 1557
Wayne v Dillon & Dillon (2008) 40 Fam LR 543

APPLICANT:

Mr Hartwell

RESPONDENT:

Child Support Registrar

FILE NUMBER:

BRC

5033

2014

DATE DELIVERED:

22 February 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

22 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms P. T. Wilson

SOLICITOR FOR THE APPLICANT:

Richard Gray & Associates

SOLICITOR FOR THE RESPONDENT:

Mr T. Foley

Australian Government Solicitor

Orders

IT IS ORDERED THAT

The applicant’s oral application for an adjournment of the hearing is dismissed.
The applicant’s counsel has leave to withdraw from the hearing today.

AND UPON HEARING Mr T. Foley, Solicitor appearing on behalf of the respondent and there being no appearance by or on behalf of the applicant:

IT IS ORDERED THAT

The applications contained in paragraphs 2 and 3 of the applicant’s Application in a Case filed 18 November 2015 are dismissed.
The applicant shall pay the costs of the Child Support Registrar of and incidental to the Application in a Case filed 18 November 2015, with such costs to be agreed or as assessed pursuant to the Family Law Rules on a party and party basis.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5033 of 2014

Mr Hartwell

Applicant

And

Child Support Registrar

Respondent

EX TEMPORE REASONS FOR JUDGMENT

In these substantive proceedings currently pending in the Court the applicant Child Support Registrar seeks enforcement of what the Child Support Registrar asserts is a debt owed to the Commonwealth by the respondent, Mr Hartwell, in respect of certain child support liabilities that have accrued over the years.
As I understand the history of the proceedings from the material that I have read in preparation for the hearing of the matter that is listed before me today, these substantive proceedings for child support enforcement were originally commenced in the Federal Circuit Court, Brisbane registry, and heard in the first instance before Federal Circuit Court Judge Spelleken. It is also my understanding from the material that I have read in preparation for today’s hearing, that the respondent Mr Hartwell, in response to the Child Support Registrar’s enforcement proceedings, has raised a number of matters which he asserts raise questions of constitutional interpretation and issues as to whether or not parts of the Child Support legislation that are relied upon by the applicant Child Support Registrar in arriving at the position that he or she says entitles him or her to bring the enforcement proceedings against Mr Hartwell, are constitutionally invalid, being beyond the legislative powers available to the Commonwealth pursuant to the Australian Constitution.
I am aware again from the material I have read that the requisite notices under the Judiciary Act 1903 (Cth) have been issued by Mr Hartwell’s legal representation to the Attorneys-General of the Commonwealth and of all of the States of this federation. Having been informed by the legal representatives of Mr Hartwell that the constitutional points were being raised, Federal Circuit Court Judge Spelleken used her statutory power to transfer the proceedings wholly from the Federal Circuit Court to this Court. To my understanding, that happened in late 2014. From that time on, a registrar of this Court has been managing the matter towards trial. Those substantive proceedings remain pending in this Court and those have been listed before Registrar Coutts, the same registrar who has been managing the matter, for further directions at 2.45 pm on 14 April 2016.
Whilst those proceedings were pending, on 18 November 2015 the respondent Mr Hartwell through his solicitors, Richard Gray & Associates, who are on the record as his solicitors and whose address is given as the address for service of Mr Hartwell in these proceedings, caused an Application in a Case to be filed in which six orders were sought by Mr Hartwell. Those orders are:
1.That the substantive matter be stayed until the hearing of the Application in a Case.
(Which I understand was meant to be that particular Application in a Case that was filed that I am referring to.)
2.That leave be granted to the Applicant to join the Federal Commissioner of Taxation to the proceedings.
3.That the substantive matter be stayed until the criminal prosecution instigated by the Federal Commissioner of Taxation in the State of New South Wales against the Applicant is finalised.
4.That the Applicant be granted leave to file his supportive affidavit and written submission out of time.
5.That the Respondent be granted leave to file their written submissions in reply out of time.
6.That the Applicant be granted leave to file subpoena’s.
The matter was thereafter again before Registrar Coutts on 19 November 2015. She made some procedural directions with respect to both the Application in a Case that I just referred to filed on 18 November 2015, and the substantive proceedings. The sealed copy of the order Registrar Coutts made that day reflects that the directions hearing that she presided over was attended by Mr Foley who I understand is a solicitor in the employ of the Australian Government Solicitor’s office who appeared on behalf of that office’s client, the Child Support Registrar, and Ms Wilson, who I understand to be Ms Pamela Wilson of Counsel who appeared on behalf of Mr Hartwell.
Ms Pamela Wilson of Counsel appears in the proceedings this morning before the Court and confirms that it was her who appeared before Registrar Coutts on 19 November 2015, albeit by telephone, as did, according to the sealed copy of the Order, Mr Foley. It is not unusual for a registrar in this court to conduct procedural directions hearings by way of telephone. Importantly, Registrar Coutts made six directions that day. I will set those out here as well:
1.The time for filing of the Respondent’s material in respect of the constitutional matter as set out in Order 3 of the order of 2 April 2015 is extended to 31 December 2015.
2.The Applicant Child Support Registrar file and serve any material in reply as directed in Order 4 of the order made 2 April 2015 by 29 February 2016.
I understand those two directions to relate specifically to the substantive proceedings, being the child support enforcement and determination of constitutional points raised by the respondent. The third direction was in relation to the Application in a Case that was filed the day before the directions hearing day, on 18 November 2015, that I have already referred to as well. It says:
3.The orders sought in paragraphs 1, 2 and 3 of the Application in a Case filed 18 November 2015 by the Respondent are listed before a Judge on 22 February 2016 at 10:00am.
Paragraphs 4 and 5, in my understanding also related to paragraph 3 and the direction made for the matter to be listed before me today. Paragraph 4 says:
4.The Child Support Agency to file and serve a Response to Case Application and supporting affidavit by 10 December 2015.
I understand that was done. Paragraph 5 says:
5.Each party to file and serve not later than 15 February 2016 an Outline of Case, List of Authorities, List of Documents relied upon and Minute of Order sought.
I understand that the applicant Child Support Agency has filed a document headed “Outline of Submissions of the Child Support Registrar” on 15 February 2016 in accordance with that direction, which included a list of documents to be relied upon by the Child Support Registrar. On the same day, 15 February 2016, the AGS filed on behalf of the Child Support Registrar a list of authorities being relied upon in this hearing in accordance with the directions. No such outline of case or submissions or list of authorities or list of documents appears to have been filed on behalf of Mr Hartwell in the proceedings.
I am informed by Mr Foley who appears in person before me today for the Child Support Registrar, who is the respondent to the Application in a Case that is listed before me today, that his outline of case and list of authorities, namely those that were filed on 15 February 2016, were indeed served on the address for the solicitor who are on the record for Mr Hartwell, namely Richard Gray & Associates, on the same day, by email. Ms Wilson who appears on instruction from Richard Gray & Associates who act for Mr Hartwell, has not informed the Court that they were not received.
In my view, on reading the outline of submissions for the Child Support Registrar, one clearly sees they are directed at the orders that are sought in paragraph 2 and paragraph 3 of the Application in a Case filed by Mr Hartwell on 18 November 2015 that by direction of Registrar Coutts made 19 November 2015, were listed for hearing before the me today. Just on that point however, I acknowledge that paragraph 3 of those procedural directions of 19 November 2015 does not specifically say “listed before a Judge for hearing”, but nor do they make any reference to the matter being listed for a directions hearing. In my view it seems patently clear and obvious on the face of those directions as a whole, particularly paragraph 3, 4 and 5, that the matter was listed for hearing before me today, not just a directions hearing.
One other passing piece of historical reference that I consider may very well be of some relevance is that the Application in a Case that was filed on 18 November 2015 that set out the six paragraphs of relief sought on an interim basis, did not have the signature of the applicant or a lawyer. I understand from the material I have read in preparation for today’s hearing, that the Registrar informed the parties through their representatives who were there that day over the telephone, that Mr Hartwell’s Application in a Case was not signed and therefore had to be submitted again in order to properly comply with the requirements for documents, such as Applications in a Case, before filing in the registry.
On 11 December 2015, the document was stamped as having been filed in the registry. It bears in handwriting the date of 18 November 2015 which is the same date as the original filed and it also bears, handwritten above the words “Application in a Case”, the new words “Amended Application in a Case”. It has a signature on it and the signature is dated 17 November 2015. Although the signature is impossible to identify as any one person’s signature, at least from my point of view, the document is marked in the relevant box that “this application was signed by lawyer for the applicant” and “this application was prepared by lawyer for the applicant”.
Although it carries the expression “Amended Application in a Case”, as Mr Foley pointed out to me, which I accept, it is identical to the Application in a Case, the relief sought is exactly the same, namely the orders sought in paragraphs 1, 2 and 3 that are sought in that application are the same as the ones that are listed by Registrar Coutts for hearing before me today.
At the outset of the hearing today, Ms Wilson of Counsel announced her appearance uninstructed today at least by her instructing solicitor Mr Gray, who Ms Wilson informed the Court is a sole practitioner and unable to get away from the busy demands of his practice to be here with her at court today. Similarly, she appeared without her client. When I asked her where her client was, she said that he was not here but was in Sydney. Ms Wilson then told the Court that the reason for that was that today was a directions hearing and she was only briefed to appear for directions and he did not attend because of that.
After some discussion between me and Ms Wilson and between me and Mr Foley, and having looked through the file, I became satisfied that the matter was listed for a hearing before me today and not for directions. I see there is nothing in any of the material I have been taken to or that I have read in preparation for the hearing today that causes me to think that the matter was properly listed only for directions today. When asked where she got the idea from that it was a directions hearing, particularly bearing in mind that Ms Wilson herself appeared by phone when the directions were made by Registrar Coutts on 19 November 2015 and the matter was listed for hearing today, Ms Wilson informed the Court that they were her instructions. She also informed the Court that they were her instructions she had been directly given by her client who is in Sydney.
In fairness, Ms Wilson also informed the Court that she had been instructed that there was an issue about a subpoena that has been sought to be issued by Mr Hartwell and that the Registrar had determined not to issue, that somehow may very well have played a part in some sort of determination by Mr Hartwell that today was a directions hearing. I pointed out to Ms Wilson that there is no other Application in a Case, at least that has been drawn to my attention by my Court staff or Ms Wilson or Mr Foley that has actually been filed by Mr Hartwell or on his behalf, raising any further matters that ought properly be dealt with before this Application in a Case of Mr Hartwell’s can be determined.
Ms Wilson did assert to the Court that she had instructions that Mr Hartwell had filed a fresh Application in a Case on 30 December 2015. The Court holds no such record, there is no such Application in a Case on file and Mr Foley certainly indicated to the Court that his client has not been served with any such Application in a Case, so I must proceed today on the basis that no such Application in a Case has been filed.
Ms Wilson, after speaking with her client by telephone, asked for an adjournment of today’s hearing. That is what these reasons I am now giving go to, that is, my determination of that application.
In support of the application for an adjournment, Ms Wilson referred to the notion of procedural fairness for her client. When I gave her the opportunity to expand upon that concept, I understood her submission to be, essentially, in a summary form “he’s not here, there’s been a stuff up (to use a colloquial expression) somewhere along the line between [Ms Wilson], Mr Gray and [Mr Hartwell]”. There was, though, no further elaboration at all on what the “stuff up” might have been, who might be responsible for it, and there was no evidence in respect of it before the Court at all.
Simply put, the Court was asked to adjourn Mr Hartwell’s application because Mr Hartwell was not here and Ms Wilson was not ready to argue it. In addition, to my complete surprise, Ms Wilson put the submission in support of an adjournment that if I did not adjourn it and I made the order that the Child Support Registrar seeks in response, namely dismissal of the orders sought by the applicant Mr Hartwell in his Application in a Case, that it would simply lead to an appeal by Mr Hartwell against such orders.
In response to that submission, I simply informed Ms Wilson that I am used to hearing such a submission from litigants in person, but was rather surprised to hear that as a submission from a barrister, an officer of the Court. In fairness, Ms Wilson indicated to the Court that I had not understood her submission properly, but when I gave her the opportunity to explain to me what she had meant to say, I understood it to be no different from what I have just set out. However, I did appreciate that Ms Wilson was effectively withdrawing what she had said and, in her own way, apologising for making such a submission to the Court. That was an appropriate course for her to take.
Mr Foley for the Child Support Registrar, submits in opposition to the adjournment a couple of things. He submits that his client is here and ready to answer the application that was properly set for today as long as three months ago. He submits that his client has put on an outline of submissions as required, a list of authorities as required and is ready and able to argue the case on its merits. Mr Foley points out something that seems to be quite clear in respect of the three matters that are sought by Mr Hartwell in his Application in a Case. They are in respect of this following matter. It is to be recalled that paragraph 1 and paragraph 3 that are listed for hearing today are applications for the substantive proceedings to be stayed. The stay is sought until the hearing of this Application in a Case. The stay is also sought until a criminal prosecution instigated by the Federal Commissioner of Taxation in the state of New South Wales against Mr Hartwell is finalised.
Just by way of further background, the evidence establishes that Mr Hartwell has been charged with what might simply be described as failing to lodge an income tax return for many years, in particular I think from the year 2000 or 2001 through to the financial year ended 2013, or possibly even 2015. He faces trial in the Local Court in New South Wales. The proceedings were originally issued out of the Local Court at Suburb B in the western suburbs of Sydney, but have more lately been transferred and listed for hearing over two days in what is described as the Downing Centre, which I think is the name of the building in which the Local Court is located at the southern end of the Sydney CBD. The proceedings are listed for trial on two days in the middle of March, which is namely next month. Further, there is evidence before the Court also that Mr Hartwell brought proceedings in the Supreme Court of New South Wales with a view to having those criminal proceedings issued by the Federal Commissioner of Taxation against him permanently stayed. For a number of reasons that application was summarily dismissed by his Honour Justice Beech-Jones sometime in the later part of last year and so, accordingly, will now proceed to hearing in the Local Court next month.

The fact that this Application in a Case is listed for hearing today before the substantive proceedings have even been listed for a hearing, in itself reflects that the application sought in Mr Hartwell’s Application in a Case in paragraph 1 is, as Mr Foley described it, moot. There is hardly a need for a stay of the substantive proceedings when the Application in a Case has been listed for hearing today.
In respect of the third order sought where the substantive proceedings are sought to be stayed until the criminal prosecution is finalised, at this point in time that also seems to be moot having regard to the fact that the criminal prosecution is listed for hearing over two days in March and the substantive proceedings in this Court are not listed for further directions before Registrar Coutts until the middle of April 2016. Whilst one can say that is not necessarily moot, having regard to the possibility that for some unknown or unexpected reason the criminal proceedings in New South Wales may not proceed in March, it seems, prima facie, at this point in time there is no need to stay these substantive proceedings.
That leaves only the application to join the Federal Commissioner of Taxation to the substantive proceedings as the principal live issue in the Application in a Case today that is sought to be adjourned.
I have read the outline of case that has been prepared and filed on behalf of the applicant Child Support Registrar. One of the points that is made in those submissions is that the Application in a Case in respect of joining the Federal Commissioner of Taxation is barely supported by any evidence filed in support of it by Mr Hartwell. Indeed, as Mr Foley points out in the written outline of case, in an affidavit filed 18 November 2015 at the same time as the Application in a Case was filed, an affidavit of Mr Hartwell that was sworn on 17 November 2015, in 145 paragraphs of a 14 page affidavit, one paragraph - namely paragraph 143 - says this:
As a result of the material served upon me in this local court prosecution, it has become apparent that the Federal Commissioner of Taxation must be joined to the substantive proceedings in the Family Court.
Although there is reference to the proceedings brought against Mr Hartwell in New South Wales by the Commissioner of Taxation in respect to the alleged non-filing of tax returns, there is very little else that sets up a factual basis for submissions that the Federal Commissioner of Taxation must be joined to the substantive proceedings currently in this Court relating to child support enforcement and/or constitutionality of child support collection arrangements. The reference, in the paragraph that I have just quoted, to the assertion that it has become apparent that the Commissioner must be joined after material has been served on Mr Hartwell in the New South Wales criminal proceedings, begs the question of what that material might be and how indeed it might be relevant to the determination of the question that Mr Hartwell has put to the Court, namely as to whether or not the Federal Commissioner of Taxation should be joined to these proceedings.
At the moment, prima facie, having read all the evidence and having read the outline of submissions by Mr Foley, I lean heavily towards the view that it is unlikely that Mr Hartwell would be able to make out his case.
In determining an adjournment application this Court has to consider a number of competing interests. Ultimately, the decision is a discretionary one for the Judge who is asked to make it, bearing in mind a multitude of matters that must be considered, including of course the due administration of justice.
One of the matters that I am acutely conscious of in these days of resourcing difficulties that this Court is going through, where there are long lists of matters of people waiting for substantive matters to be determined; long list of matters of people waiting for interim matters to be heard and determined; and long delays in matters coming to trial, coming to hearing and even, unfortunately I must say, long delays between trials and judgments being written because of the additional pressures of the outstanding list of matters waiting for hearing, is that the exercise of the discretion to adjourn a matter must also take into account the interests of all of the other litigants waiting for this Court’s precious time. Furthermore, the public interest in greater efficiency in the administration of justice must be taken into account.
To seek and expect an adjournment of the hearing of an Application in a Case that has been brought by a party where they have known the application was listed for three months, simply because there has been a “stuff up” not properly explained to the Court in any way that the Court or the opposing party can even begin to understand is, in my respectful judgment, asking the Court to go “a bridge too far”, to use that popular expression that emanates from a failed World War Two military engagement.
I am determined to hear the application today and to refuse the adjournment application quite satisfied that no procedural unfairness has been done to Mr Hartwell in the course of doing so.

Application in a Case

Consequently, before me for determination today is an Application in a Case filed by the respondent in substantive child support enforcement proceedings currently pending in this Court. The Application in a Case was filed on 18 November 2015 and on 19 November 2015 at a procedural hearing before Registrar Coutts who is the registrar managing this matter through to the point at which it enters a judge’s docket for judicial case management.
On that date, 19 November 2015, Registrar Coutts listed the hearing of the applications contained within paragraphs 1, 2 and 3 of that Application in a Case for hearing before me at 10.00 am today, Monday 22 February 2016. At the outset of the hearing today Ms Pamela Wilson of Counsel appeared for Mr Hartwell and Mr Foley, solicitor with the Australia Government Solicitor, appeared on behalf of the respondent to the Application in a Case, the Child Support Registrar.
Ms Wilson ultimately applied for an adjournment of the Application in a Case, which application was orally made and which application I dismissed giving extemporaneous reasons just earlier today for the dismissal of that application. The applicant in the Application in a Case, Mr Hartwell, did not attend at court this morning with his counsel. The explanation for that I have dealt with in my reasons for dismissing the application for an adjournment. Simply put, at this point in time it was asserted to me, at least by Ms Wilson that her instructions were that the matter was listed today for a directions hearing and that apparently explains the reason why Mr Hartwell who remains in Sydney, for some reason, is not here today. Ultimately, as I have said, I dismissed the oral application for an adjournment being satisfied that in the interests of justice, the matter should proceed to hearing today, there being no appropriate reason why it should not, notwithstanding that Mr Hartwell was not here and notwithstanding the fact that Ms Wilson of Counsel asserted that she was not prepared for the argument on the hearing of the Application in a Case. When I determined to dismiss the application, Ms Wilson made it clear to the Court that she would be seeking leave to withdraw, not being in a position to argue the Application in a Case any further.
I indicated to her that I would give her that leave if she sought it and I gave her the opportunity to call Mr Hartwell and tell him that I had dismissed the application for an adjournment and to give him the opportunity to attend by telephone and to put any submission to the Court that he wished to put in person in support of his Application in a Case. In doing so, I indicated to Ms Wilson that my preliminary feelings about the merits of the Application in a Case were such that Mr Hartwell had certainly not on paper in his material made out any supportive case for the orders which he sought and that he ought to be told that when he was being told that he had the opportunity to appear by telephone and make further submissions if he wished.
After a short break, I returned and was assured that Mr Hartwell had been contacted, but had indicated that he would not be taking up the opportunity advanced to him to appear by telephone and further his argument in support of his Application in a Case. No reasons were proffered by Ms Wilson on Mr Hartwell’s behalf as to why he would not, could not, or did not take up that opportunity that was offered to him.
That part of the Application in a Case listed for hearing today seeks three orders. I have already said in my earlier extemporaneous reasons for dismissing the adjournment application, that the first of those orders sought - that the substantive proceedings be stayed until the hearing of this Application in a Case - is effectively now moot having regard to the fact that this Application in a Case is being heard and determined whilst the substantive proceedings are still pending further directions from the Registrar in respect to when they might be listed for hearing.
In addition, the third order sought - that being that the substantive order that the child support enforcement proceedings be stayed until the criminal prosecution instigated by the Federal Commissioner of Taxation in the state of New South Wales against Mr Hartwell is finalised - is another matter upon which I said some things in my earlier extemporaneous reasons. It is not, of course, simply moot now because the criminal prosecution has not yet been concluded whilst the substantive child support enforcement proceedings remain pending. But nevertheless, as things currently stand, it appears as if it could very well be a moot proposition, the criminal prosecution currently being listed for hearing in the local court at Sydney in the Downing Centre in the CBD over two days in the middle of March, next month, whereas the substantive proceedings in this Court, as I have said, are only listed for directions before the Registrar in April this year.
Acknowledging though that it is not entirely a moot question, I shall return to deal with it in due course after I have dealt with the other application for an order that is sought in paragraph 2, namely that leave be granted to the applicant, Mr Hartwell, to join the Federal Commissioner of Taxation in these proceedings.
Very little is known in the absence of a written outline of argument from Mr Hartwell that was required to be filed by the directions Registrar Coutts made on 19 November 2015, at least by 15 February 2016, and having regard to the material otherwise filed by Mr Hartwell in the matter.
I say and acknowledge for the purposes of these reasons that I have read the Application in a Case filed 18 November 2015, an identical Application in a Case described as an Amended Application in a Case filed 11 December 2015, the affidavit of the applicant in the Application in a Case, Mr Hartwell, filed on 18 November 2015 and the affidavit of Ms C filed 18 November 2015. I have also read the affidavit of Mr Hartwell filed on 30 December 2015 and written submissions filed by him on the same day that go to the substantive proceedings and, on their face, to some issues surrounding the question of whether a subpoena should be issued to the Federal Commissioner of Taxation and the Child Support Registrar in these proceedings.
What is clear on all the material that I have read, including the material relied upon this morning by the respondent to the Application in a Case, the Child Support Registrar, is that, as I have already outlined in my earlier extemporaneous reasons, Mr Hartwell, at the same time as facing child support enforcement proceedings in which the Child Support Registrar is seeking to recover from him what he or she asserts is a debt duly owed to the Commonwealth pursuant to the child support legislative scheme, of something in excess of $130,000 in respect of child support not paid by him pursuant to assessed obligations over many many years, has also been charged with numerous offences relating to the non-filing of income tax returns on a yearly basis since around 2000 through to 2014.
It seems that Mr Hartwell has been, over the years, determined not to file any income tax returns or to apply for a tax file number because of his passionate opposition to the right of the Child Support Registrar representing the Commonwealth to be able to demand of him or require of him the payment of child support obligations, believing that the lodging of income tax returns or the making of an application for a tax file number is somehow to be used against him in the process of either assessing or enforcing child support obligations against him in respect of his two ex-nuptial children born to two different mothers.
Mr Hartwell makes out some sort of case that the Taxation Commissioner, who was once, before 2000 I think, pursuant to the child support legislative scheme, somehow responsible for the collection of child support, has some role relevant to play in the proceedings. Unfortunately, for the understanding and determination of Mr Hartwell’s Application in a Case, much of the material that he filed at the same time as the Application in a Case in support of the Application in a Case does not go to the question of joinder at all. Rather, much of it goes to difficulties that he has had with his computer and telephone system over the last year or so, difficulties that I do not consider relevant to discuss at this point in time.
As the solicitor for the Child Support Registrar points out in his written submissions, a careful scrutiny of the affidavit material filed by Mr Hartwell results in the discovery of one paragraph apparently relevant to the determination of this Application in a Case to allow Mr Hartwell to join the Federal Commissioner of Taxation to the substantive child support enforcement proceedings. That is paragraph 143 of the affidavit of Mr Hartwell filed on 18 November 2015. One might also say that paragraph 142 is related as well. I will read into the record those two paragraphs:
142.On Tuesday the 17 November 2015, I appeared in the Downing Centre Local Court in the matter that had been instigated by the Federal Commissioner of Taxation. The Director of Public Prosecutions (Cth) who is representing the Federal Commissioner of Taxation was granted leave to extend the service of the complete brief of evidence to the 17 November 2015.
143.As a result of the material served upon me in this local court prosecution, it has become apparent that the Federal Commissioner of Taxation must be joined to the substantive proceedings in the Family Court.
Rather curiously though, the applicant in this Application in a Case goes no further in that affidavit in deposing to any other factual grounds or any of the grounds arising out of the material that has been served upon him. He does not annex anything of relevance. He does not specifically describe it or say what it is or what it contains in any way that further supports the proposition that I have just read out, namely the bald proposition that it has become apparent that the Federal Commissioner of Taxation must be joined to the substantive proceedings in the Family Court. Without more, I am left with nothing much upon which one could determine that the Federal Commissioner of Taxation should indeed appropriately be joined in these child support enforcement proceedings.
In support of the argument that the Application in a Case seeking to join the Federal Commissioner of Taxation should be dismissed, Mr Foley took me to evidence filed on behalf of the Registrar, namely an affidavit of Katherine McGree filed on 10 December 2015. Katherine McGree deposes to being a solicitor in the employ of the Australian Government Solicitor’s office authorised to make this affidavit on behalf of the Child Support Registrar. Exhibited to that affidavit is an email that was sent by Mr Foley, solicitor who appears today, to Mr Hartwell’s solicitors, Richard Gray & Associates, namely to Mr Gray of that firm, on Monday 7 December 2015 at 11.19 am. That can be found at paragraph 41 of the affidavit, part of the annexure bundle that is attached to the affidavit and referred to in its substantive paragraphs.
In that email Mr Foley asks several very pertinent questions in respect of the Application in a Case that I am currently determining, the answers to which Mr Gray and, ultimately, Mr Hartwell, his client, were being asked for so that the Child Support Registrar could properly prepare their case in answer to this Application in a Case for joinder of the Commissioner of Taxation. I will include the relevant paragraphs in this extemporaneous judgment:
Can you please advise whether your client intends to serve the application on the Commissioner of Taxation?
Can you please also advise what specific relief is sought against the Commissioner of Taxation in these proceedings and whether any proper pleadings have been filed setting this out?
Can you please advise the factual and legal basis upon which your client seeks the joinder of the Commissioner of Taxation to these proceedings? The unsealed affidavit of Mr Hartwell we have been provided with simply says at paragraph 143 that it has become apparent to your client that the Commissioner should be joined because of material served on your client recently in the tax prosecution against him in NSW. There are no documents attached to the affidavit in this regard. This evidence is clearly deficient in asserting any proper basis for the joinder of the Commissioner and leaves our client unable to properly reply.
We look forward to your urgent response regarding the above.
In evidence in the same affidavit, at page 45, is the next email in reply from Mr Gray back to Mr Foley on 9 December 2015 at 6.24 pm. Mr Gray of Richard Gray & Associates says:
I refer to the above matter and to previous communications.
I attach hereto a copy of the signed Application in a Case.
I have had discussions with Counsel who appeared on behalf of Mr Hartwell at the Procedural Hearing last month and she advises me that she is not aware of the matters you say were raised by the Registrar at the Directions Hearing so if you could clarify same that would be greatly appreciated.
Yours faithfully,
Richard Gray.
Clearly, it says nothing in response to any of the questions that I have just referred to that were asked by Mr Foley only two days before. It does not even acknowledge that they were asked, it says nothing about any intention to seek instructions and to provide answers, it simply says, quite discourteously from a professional point of view, in my respectful opinion, nothing. It does not respond to them at all.
I have also, as I have said, read the affidavit of Mr Hartwell filed on 30 December 2015, but I glean nothing from that that is supportive of the proposition that the Federal Commissioner of Taxation is indeed a proper party to join in these proceedings.
Mr Foley’s written submissions are relatively comprehensive. They point to the fact that joinder of additional parties in Family Court substantive proceedings is governed by Rules 6.02 and 6.03 of the Family Law Rules 2004. Rule 6.02 says:
(1)A person whose rights may be directly affected by an issue in a case, and whose participation as a party is necessary for the court to determine all issues in dispute in the case, must be included as a party to the case.
Rule 6.03 says:
(2)A party may add another party after a case has started by amending the application or response to add the name of the party.
(3)      A party who relies on subrule (2) must:
(a)file an affidavit setting out the facts relied on to support the addition of the new party, including a statement of the new party’s relationship (if any) to the other parties; and
(b)      serve on the new party:
(i) a copy of the application, amended application, response or amended response; and
(ii)      the affidavit mentioned in paragraph (a); and
(iii)     any other relevant document filed in the case.

Mr Foley points out that his Honour Justice Warnick formerly of this Court in the decision of Wayne v Dillon & Dillon (2008) 40 Fam LR 543, when dealing with equivalent provisions of the Federal Magistrates Court Rules 2001, said some relevant things. At paragraph 11 of that decision, his Honour said:
It seems plain enough that under the rule joinder could be permitted even though no order was sought against a third person. A third person might be affected by an order though not directly the subject of it and/or it might be discernable (sic) that findings upon which an order is based bind a third person and so in either instance that third person should be party to the proceedings. However, neither of these situations describes the instant case.
Justice Warnick went on to say at paragraphs 18 and 19:
The word “necessary” in [the equivalent provision to rule 6.02(1) of the Federal Magistrates Court Rules] must mean something more than “useful” or “expeditious”. In my view, if there are available alternative means to joinder to the substantive proceedings, of obtaining from a third person or someone already a party what is needed to allow an applicant for joinder to establish an identified “case”, joinder is unlikely to be “necessary”.
However, if a cause of action, recognisable at law, against a “third person” is particularised, then it is at least highly likely that joinder will be “necessary for the court to completely and finally determine all matters in dispute”. Thus, in an application such as was before the Federal Magistrate, such a question falls for consideration.
Mr Foley refers to those principles expounded by Justice Warnick in supporting a further part of his submissions. He submits on behalf of the Child Support Registrar that no claim is made in these proceedings against the Federal Commissioner of Taxation; no cause of action is made out at all against the Federal Commissioner of Taxation in the material that Mr Hartwell has put before the Court that might be determined in the substantive proceedings in this Court. Mr Foley submits that no order is sought that would bind the Federal Commissioner of Taxation or sufficiently affects the Federal Commissioner of Taxation’s interests so as to warrant his joinder. I accept that submission on the face of the material that I have read that was filed by Mr Hartwell.
Mr Foley points out that Justice Warnick observed in paragraph 17 in Wayne & Dillon that joinder is a “serious step” with often “significant financial consequences”. Mr Foley submitted “there is nothing that would justify the taking of such a step in this litigation”. As has become clear on the material that was put before the court or filed by Hartwell, there is nothing in my respectful view that positively in any way points to justification of making an order to join the Federal Commissioner of Taxation in the substantive proceedings.
A further submission put by Mr Foley on behalf of the Child Support Registrar relies on and refers to the recent decision of his Honour Justice Beech-Jones in his decision of Hartwell v The Federal Commissioner of Taxation [2015] NSWSC 1557 which was the determination of the Federal Commissioner of Taxation’s summary dismissal application in respect of proceedings filed by Mr Hartwell in the Supreme Court of New South Wales seeking to stay the criminal proceedings that had been brought against Mr Hartwell in New South Wales. Mr Foley points to that decision in support of the submission that quite clearly, having regard to the decision of Justice Beech-Jones, the criminal proceedings brought against Mr Hartwell for not filing any tax returns for many years are completely separate and distinct from the child support enforcement proceedings that Mr Hartwell is defending, for constitutional reasons principally, in this particular Court.
His Honour Justice Beech-Jones said in his judgment that the prosecution of Mr Hartwell in the Local Court and the proceedings in the Supreme Court that he was dealing with and determining do not directly concern child maintenance obligations, instead they concern Mr Hartwell’s obligations to submit annual tax returns at least when directed to do so by the Commissioner. I am also in a position like Justice Beech-Jones, where I fail to see that there is a sufficient connection, at law at least, or in fact. I must say I do not see any sufficient legal connection principally between the substantive child support enforcement proceedings here and whether or not there is any merit in the constitutional challenge and the criminal proceedings brought by the Federal Commissioner of Taxation against Mr Hartwell for not lodging a tax return for many years, such that the Federal commissioner of Taxation against whom absolutely no relief is sought in the substantive proceedings ought to be joined as a party to these proceedings and subject to the expense and inconvenience that joinder in such proceedings would impose upon him.
Accordingly, I am not minded to make the order sought by Mr Hartwell for leave to join the Federal Commissioner of Taxation and I dismiss his application in that respect.
Although I have mentioned the fact that that the third order that is sought by Mr Hartwell is somewhat moot, I am nevertheless minded to actually determine the application having regard to the fact that it is indeed possible that the criminal proceedings may not indeed, for some reason not currently expected or known, be finalised on the two days that they are listed. It is not clear to me, again in the absence of any written or oral submissions by Mr Hartwell, as to exactly what the basis is for his assertion that the substantive proceedings in this Court should be stayed pending the finalisation of the criminal proceedings.
Mr Foley in his submissions for the Child Support Registrar in opposing the application says that it is well established that the mere fact that civil proceedings may in some way relate to a criminal prosecution does not in itself warrant the grant of a stay of the civil proceedings. He refers to a number of authorities in support of that proposition. He says that an applicant in Mr Hartwell’s position who seeks to stay these proceedings must point to a real risk of prejudice. Speculation as to prejudice absent an evidentiary basis is insufficient. I accept those submissions as being correct.
Again referring to the decision and reasons of Justice Beech-Jones in the Supreme Court of New South Wales, Mr Foley says those reasons really do show that the prospect of any real prejudice possibly or potentially arising in the proceedings at the same time is negligible. He says, having regard to Justice Beech-Jones’ decision about the two matters being completely separate and distinct, that any asserted prejudice that might arise is nothing more than speculation, particularly in circumstances where Mr Hartwell makes no effort in the material that he has filed or in submissions before the Court today to particularise and highlight and point out any such prejudice that might weigh in the determination.
Accordingly I dismiss the application for a stay of the substantive proceedings pending the finalisation of the criminal proceedings against Mr Hartwell in New South Wales. I do not consider I need to make any order in respect of the application contained within paragraph 1 of the Application in a Case, it, as I have already said, being a moot proposition.
Having dismissed the Application in a Case, or at least those two applications brought by Mr Hartwell, Mr Foley asks for costs on behalf of the Child Support Registrar.
Of course s 117 of the Family Law Act 1975 (Cth) (“the Act”) must be acknowledged on any determination of a costs application. It quite clearly sets out the general principles that in general proceedings under the Act, costs are generally borne by each of the parties. I am satisfied that child support enforcement proceedings are properly brought in this Court under the provisions of the Act although it is child support liability incurred pursuant to the child support legislation that is actually sought to be enforced. I am satisfied that the provisions of the Act that relate to costs also apply in respect of determining costs in proceedings for child support enforcement.
As I said, the general provision provides for each party to bear their own costs but that is subject to a discretion being inferred on the Court to make costs orders that it considers just in circumstances in proceedings before the Court where the Court is of the opinion that a costs order is justified. Matters the Court must take into account when determining if a costs order is justified and what the terms of such costs order will be include matters set out in s 117(2)(A) of the Act.
In this particular case, I am conscious most particularly of the fact that an Application in a Case was filed by Mr Hartwell and where that application was listed for hearing today and written submissions were required to be filed and served by 15 February, Mr Hartwell neither filed those submissions nor appeared today for the hearing.
In those circumstances, and having regard to the material that Mr Hartwell had put before the Court in support of his application and the submissions made on behalf of the Child Support Registrar, I determined that there was no merit in the Application in a Case and dismissed it. Accordingly, Mr Hartwell, the prosecutor of the application, was wholly unsuccessful upon it, a matter of significant relevance, along with his conduct in the prosecution of the Application in a Case.
The Child Support Registrar has been put to costs in filing affidavit evidence in support of its opposition to the orders sought, in preparing and filing written submissions and in having a solicitor appear here today at court for a number of hours to make the case in opposition to the orders sought that was ultimately wholly unsuccessful.
The financial circumstances of Mr Hartwell are immediately relevant to the determination of a costs application made against him. I know little of Mr Hartwell’s financial circumstances, but although I know little, I consider I know enough to determine that making a costs order against him is justified and one that requires him to pay the costs of the Child Support Registrar of and incidental to the Application in a Case on a party and party basis is indeed a just one.
I have had regard to the affidavit of Ms D filed 10 June 2014 that was filed in the substantive child support enforcement proceedings and in that affidavit there is evidence that Mr Hartwell is the sole registered proprietor of a piece of real property in the western area of Sydney, about which there is evidence that suggests it is worth somewhere from between $200,000 to around $400,000, and about which there is evidence that it carries a mortgage registered on its title but pursuant to which there is only some $6,000 or thereabouts owing. That leaves a substantial amount of equity in the property, which of course the Child Support Agency might ultimately seek to realise in order to secure payment of its debt if Mr Hartwell’s arguments in opposition to the enforcement are ultimately unsuccessful.
There is also some evidence of Mr Hartwell having some bank accounts, including some upon which he is a joint signatory but in which there is not much money. There is evidence he is a barrister admitted to the bar in Queensland and practising here out of chambers in Brisbane but there is no evidence about his income. However, having regard to the evidence of the equity in his property, and the other matters I have discussed, I consider a costs order in terms that I will order to be justified and just. I order accordingly.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 22 February 2016.

Associate:

Date: 23 March 2016