Child Support Registrar and Sampson and Ors

[2007] FamCA 1049

FAMILY COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & SAMPSON AND ORS [2007] FamCA 1049

FAMILY LAW – Child Support – enforcement - costs

APPLICANT: CHILD SUPPORT REGISTRAR

FIRST RESPONDENT FATHER: MR E SAMPSON

SECOND RESPONDENT: MR H

THIRD RESPONDENT: MR J SAMPSON

FOURTH RESPONDENT: MS G SAMPSON

FIFTH RESPONDENT: T HOLDINGS PTY LTD

RESPONDENT MOTHER: MS J SAMPSON

FILE NUMBER: BRF12144 of 1999

DATE DELIVERED: 2 July 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: The Honourable Justice Jordan

HEARING DATE: 2 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kent with Mr Schulte

SOLICITOR FOR THE APPLICANT: Australian Government Solicitor

THE RESPONDENT FATHER: Appeared in person, with the assistance of the Duty Lawyer

THE SECOND RESPONDENT: No appearance

COUNSEL FOR THE THIRD AND FOURTH

RESPONDENTS:

Mr Alexander

SOLICITOR FOR THE THIRD AND

FOURTH RESPONDENTS :

Simonidis Shoebridge Lawyers

THE FIFTH RESPONDENT: No appearance

THE RESPONDENT MOTHER: Appeared in person

Orders

1. That the Departure Application in Form 63 filed by the first respondent father on 1 December 2003 be dismissed.

1. That the first respondent father pay the costs of the Child Support Registrar and of the mother of and incidental to the Departure Application, such costs to be agreed or, failing agreement, to be taxed.

1. Certification for counsel in the Departure Application proceedings.

1. It is declared:

(a)    As at 2 July 2007, first respondent father is indebted to the Commonwealth in the sum of $65,295.64, being $46,380.91 for arrears of registrable maintenance liabilities and $18,914.73 for late payment penalties pursuant to the Certificate marked Exhibit 1 on today’s date.

(b)    That at all material times, for the purpose of the Child Support enforcement proceedings instituted on 13 March 2003, and in respect of the sums identified in the order of Justice Coleman made on 22 September 2006 (limited to the total of $90,000.00), T Holdings Pty Ltd A.C.N. … (in liquidation) has been the alter ego of the first respondent and the assets of the company limited to the said sum of $90,000.00 are the assets of the first respondent father.

1. That the Child Support Registrar be at liberty to disburse the funds held in trust by the Australian Government Solicitor as follows:

(a)    the sum of $65,295.64 be disbursed by the Child Support Registrar in accordance with the Child Support Legislation;

(b)    the balance to be held in trust pending the finalisation of the payment of costs as ordered.

1. That the first respondent father pay the costs of the Child Support Registrar of and incidental to the Enforcement Summons filed 13 March 2003 to be agreed or, failing agreement, to be assessed.

1. That the liquidator cause the amount of $20,000.00 to be paid to the Child Support Registrar on account of costs of the Child Support Registrar pursuant to these orders.

1. That the second respondent pay the Child Support Registrar’s costs of and incidental to the Enforcement Summons filed 13 March 2003 to be agreed or, failing agreement, to be taxed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Jordan delivered this day will for all publication and reporting purposes be referred to as Child Support Registrar & Sampson and Ors.

FAMILY COURT OF AUSTRALIA AT BRISBANE  

FILE NUMBER: BRF12144 of 1999

CHILD SUPPORT REGISTRAR

Applicant

And

MR E SAMPSON

First Respondent Father

And

MR H

Second Respondent

And

MR J SAMPSON

Third Respondent

And

MS G SAMPSON

Fourth Respondent

And

T HOLDINGS PTY LTD

Fifth Respondent

And

MS J SAMPSON

Respondent Mother

REASONS FOR JUDGMENT

EX TEMPORE

1. I will deal with the matter on the basis that the proposed orders do not come before the Court as and by way of consent orders.  I received that document into evidence and had it marked Exhibit 4 and it is evidence of terms of resolution proposed by the Child Support Registrar and not opposed by the parties, save to the extent that the first respondent father sought to be heard in relation to pars 2 and 6.  He said he acknowledges that he has signed the document but I accept that his signing of that document was, in a sense, conditional upon him being at liberty to make submissions designed to convince the Court that, notwithstanding he has executed that document, the Court should give consideration to limiting the quantum of the costs referred to in pars 2 and 6 to no more than the quantum of funds referred to in other portions of those proposed orders, that is, a limit of $90,000.

2. Exhibit 4 includes declarations as to liability and as to the status of a company, a party to the proceedings, T Holdings Pty Ltd.  In this matter, I have received and reviewed a great body of evidence from the Child Support Registrar lawyer, the respondent father, the respondent mother and the third and fourth respondents, the parents of the respondent father.  The third respondent is now deceased but was a party to the proceedings and executed an affidavit in August 2005.

3. It needs to be noted that, at the commencement of the proceedings, consistent with the proposed orders, the first respondent father indicated to the Court that it was not his intention to proceed with his departure applications.  The respondent mother indicated that her interest in the matter was as a respondent to the application for departure, and counsel for the third and fourth respondents indicated to the Court that they did not wish to be heard in relation to the submissions made on behalf of the Child Support Registrar relating to the quantum of liability and the capacity of the Child Support Registrar to enforce in the ways that they have sought.

4. Paragraph 4 of the proposed orders, as I say, requires amongst other things a declaration as to debt.  In relation to that debt, I am satisfied on the evidence which now appears as Exhibit 1 in these proceedings that the debt referred to therein has been proved. 

5. As to sub-par 4(b) requiring a declaration as to the status of T Holdings Pty Ltd, I am satisfied on the evidence that at all material times the fifth respondent has not observed corporate formalities such as holding meetings of directors and keeping minutes of such meetings; holding meetings of shareholders and keeping minutes of such meetings; has not paid dividends to shareholders; has  made available its assets for the use and benefit of the first respondent; has no separate mind, separate will or separate existence of its own but for the separate mind, separate will or separate existence of the first respondent; is controlled completely by the first respondent; is used for the personal purpose of the first respondent; has paid all its profits to the first respondent; and that there is a unity of interest between the said company and the first respondent and a unity of ownership and there is no individuality or separateness between the two and, therefore, the company is the alter ego of the first respondent and that, for those reasons, it is in order to make the declaration sought in par 4 which, in turn, enables the Child Support Registrar to seek, and this Court to make, orders in relation to funds deposited with the Child Support Registrar by the Liquidator, the company having now been placed in liquidation.  If further enables the Child Support Registrar to seek further orders in relation to the $20,000 presently being held by the Liquidator on account of potential orders for costs.

6. As to pars 2 and 6, the respondent father says to the Court that, in essence, everything he has had to say to the Court and the Child Support Agency down the years is true and I gather, by inference, that anything that his former wife has had to say in the context of proceedings, either through the agency or through this Court, is false and that he can prove all the things he had to say are true and/or that the conduct of the Child Support Registrar has been precipitous or extreme and that he could prove those things.

7. He says that he is presently incarcerated; he is on an invalid pension and it is his belief that it is unlikely that he will be able to gain employment in the future and that, therefore, the Court should seek to limit the possible quantum of any order for costs within the confines of whatever remains of the $90,000 after payment of arrears and penalties.

8. One cannot help but have some sympathy for the circumstances the respondent father now finds himself in, but nevertheless one cannot allow such matters to deter a Court from making proper orders in all the circumstances.  The evidence before me and the failure of the father to prosecute his assertions certainly, at the very least, would leave this Court in a position where it is not open to accept what is said by the father from the Bar table. 

9. It was open to him to defend and prosecute all matters before this Court.  As I say, I understand the difficulties he has without legal representation, within the confines of being incarcerated and in circumstances where he may well be suffering some depression or like consequences as a result of what has happened in his life over the last eight years.  There is much in what has been said in reply that, to blame the Child Support Registrar and the Family Court for all of his misfortunes may very well lose sight of the fact that neither the Child Support Registrar nor the Family Court would have any interest in this family had it not been for the fact that child support assessments made pursuant to legislation passed by our Parliament required the father to meet certain obligations in relation to his children, and those obligations were not being met.  No doubt, this aroused the obligations of the Child Support Registrar to take appropriate steps to ensure that parents assume primary responsibility for the financial support of their children and, in that sense, the Family Court became an unwilling participant in the exercise.

10. The litigation has been protracted and costly.  It is clear that, in large part, that has been as a result of the father's failure to pay and/or the large number of applications he has brought.  The complication of those proceedings has been brought about by circumstances which, by virtue of the document the father had signed himself and certainly by virtue of my findings relating to the creation of the company and the dealings with the income and property of that company, have served to complicate the matter and add to the delays and the costs.

11. I take the view that these proceedings more properly fall under the guidelines usually applied to civil proceedings.  These are not proceedings between parties to a marriage; these are civil proceedings designed to recover moneys properly due and payable and, in those circumstances, ordinarily costs should follow the event.

12. In this case, as I say, these are not even primary proceedings.  They are, in a sense, supplementary proceedings, enforcement-type proceedings, where an even more robust approach is necessary because there are many parties who are before this Court unwillingly and the catalyst to that litigation has been the default of the father.  So, whilst I have a great deal of sympathy for the father in a personal sense, in a legal sense I would be concerned that others, including the taxpayers of Australia, would, in effect, be required to supplement the payment of the no doubt extraordinary costs incurred by this exercise if I did not firstly direct the burden where it should fall, and that is upon the central player in this exercise, who is the father.

13. It may well be that, in reality, the father, if he is correct in his assessment as to his future, will never have the capacity to meet all or any significant part of any order for costs.  That is a matter for the Registrar amongst others, but I am not satisfied in these extraordinary enforcement-type proceedings that the father's current financial circumstances should stand as a bar to making other appropriate orders.

14. The orders sought by the Child Support Registrar are to retain the capacity for the parties to reach some agreement about the quantum of those costs and there is a third safeguard written into those orders that, in the event that those costs cannot be the subject of agreement, then they have to be taxed, so that the respondent father is protected to that extent that some independent third assessment of the appropriate quantum of such costs is available as a fall-back position.

15. On the evidence, the second respondent, Mr H, has been a party to the proceedings.  The allegations against him were to the effect that he participated in a series of transactions designed to defeat the claim of the Child Support Registrar and that he was acting in collusion with, and on the instructions of, the respondent father to bring about certain events which, again, served to complicate this matter.  I am satisfied that Mr H has been a party to the proceedings properly joined, that he has been aware of the proceedings and he has chosen not to defend the allegations raised against him and that it is therefore appropriate, in all the circumstances, that I make the orders sought in relation to him.

16. Therefore, I propose to make the orders and declarations set out in Exhibit 4, signed by each of the parties.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: