FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kadis & Elmore (No 2) [2024] FedCFamC2F 1180
File number(s): MLC 3484 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 19 July 2024 Catchwords: FAMILY LAW – Child support enforcement application – where Father in arrears of child support – whether a superannuation payment split order can be made pursuant to Child Support Act – superannuation payment split orders can only be in section 79 or 90SM property proceedings – parties seek to settle debt by way of cash payment and superannuation split – section 105 of Child Support (Registration and Collection) Act 1988 does not vary section 90XS & 90XT of the Family Law Act 1975 – informal procedures adopted – where final property orders have already been made – final property orders set aside by consent – see s 79A(1A) not section 79A(1)(a) applied – new property orders made – superannuation split orders made by consent – procedural fairness must be provided to Trustee of superannuation fund – after orders and reasons provided evidence of procedural fairness provided – orders made. Legislation: Child Support (Registration and Collection) Act 1988 s 105
Civil Law and Justice Legislation Amendment Act 2018 (Cth)
Family Law Act 1975 ss 79, 90XS, 90XT
Federal Circuit and Family Court of Australia Act 2021 ss 180 & 190
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 1.31(1)
Cases cited: Kadis & Elmore [2023] FedCFamC2F 479 Division: Division 2 Family Law Number of paragraphs: 18 Date of hearing: 19 July 2024 Place: Melbourne Solicitor for the Applicant: Ms Hamilton-Green Solicitor for the Respondent: Mr Murray ORDERS
MLC 3484 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KADIS
Applicant
AND: MR ELMORE
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
19 JULY 2024
THE COURT ORDERS BY CONSENT THAT:
1.The child support debt between the Applicant, MS KADIS, and Respondent, MR ELMORE, be varied and fixed in the sum of $30,000 to be paid in accordance with these orders, that is $18,000 in accordance with Order 3 herein and $12,000 by way of superannuation payment split as provided at Order 6 and notation A.
2.Upon the completion of the Respondent’s obligations pursuant to the ensuing Orders 3 through 5 hereof and the intended orders described at Order 6 and notation A hereof, the Respondent’s liability to pay child support to the Applicant is entirely discharged.
3.That pursuant to section 111B(1)(a) of the Child Support Registration and Collection Act 1988, within 7 days of the date of these orders, the Respondent pay to the Applicant the lump-sum of $18,000 (“the lump-sum payment”).
4.The Applicant’s solicitors shall notify the Child Support Registrar within 7 days upon completion of the Respondent’s obligation to make the lump-sum payment pursuant to Order 3 and upon completion of the superannuation split.
5.That pursuant to section 111B(1)(l), upon being advised by the Applicant’s solicitors of the Respondent’s compliance in making the lump-sum payment…
Keep reading for free
Create a free CaseChat account to read Kadis & Elmore (No 2) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2024] FedCFamC2F 1180
- Decision Date
CaseChat Overview and Summary
The court found that section 105 of the Child Support (Registration and Collection) Act 1988 did not vary sections 90XS and 90XT of the Family Law Act 1975. Therefore, the court could not make a superannuation payment split order under the Child Support Act in an enforcement application. Instead, the court adopted informal procedures as the final property orders had already been made. The court set aside the previous property orders by consent and made new property orders, including superannuation split orders, as these were appropriate and just. The court emphasised the necessity of procedural fairness to the Trustee of the superannuation fund, which was provided after the orders and reasons were given. Consequently, the court ordered the respondent to pay a lump sum of $18,000 and to allocate $12,000 from his superannuation interest to the applicant.
The final orders included a variation and fixation of the child support debt, a requirement for the respondent to pay a lump sum of $18,000, and the allocation of $12,000 from his superannuation interest to the applicant. The matter was adjourned for mention to allow the intended final property orders, including the superannuation payment split orders, to be made. The court noted that the form of the orders was subject to entry in the court’s records and could be reviewed or varied as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Orders
Orders of the court
MLC 3484 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS KADIS
Applicant
AND:
MR ELMORE
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
19 JULY 2024
THE COURT ORDERS BY CONSENT THAT:
1. The child support debt between the Applicant, MS KADIS, and Respondent, MR ELMORE, be varied and fixed in the sum of $30,000 to be paid in accordance with these orders, that is $18,000 in accordance with Order 3 herein and $12,000 by way of superannuation payment split as provided at Order 6 and notation A.
2. Upon the completion of the Respondent’s obligations pursuant to the ensuing Orders 3 through 5 hereof and the intended orders described at Order 6 and notation A hereof, the Respondent’s liability to pay child support to the Applicant is entirely discharged.
3. That pursuant to section 111B(1)(a) of the Child Support Registration and Collection Act 1988, within 7 days of the date of these orders, the Respondent pay to the Applicant the lump-sum of $18,000 (“the lump-sum payment”).
4. The Applicant’s solicitors shall notify the Child Support Registrar within 7 days upon completion of the Respondent’s obligation to make the lump-sum payment pursuant to Order 3 and upon completion of the superannuation split.
5. That pursuant to section 111B(1)(l), upon being advised by the Applicant’s solicitors of the Respondent’s compliance in making the lump-sum payment and completion of the superannuation splitting Order, the Child Support Registrar is directed to cancel and revoke all registered child support debts between the Applicant and the Respondent.
AND THE COURT ORDERS THAT:
6. The Respondent do all acts and things to immediately provide procedural fairness to the Trustee of the Super Fund 1 (and provide by email to the Applicant and the Associate to Judge O’Shannessy any response of the Trustee) of the parties’ application to make orders in the form of the following draft Orders:
(a) That the base amount of $12,000 is allocated, as required by s.90XT(1)(a) of the Family Law Act 1975, to the Applicant, MS KADIS, out of the interest held by the Respondent, MR ELMORE, in Super Fund 1 bearing member number ….
(b) That whenever a splittable payment within the meaning of Section 90XE of the Act becomes payable to or on behalf of the Respondent from his interest in his Super Fund 1 (“the Trustee”) shall pay the Applicant the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, and make a corresponding reduction in the entitlement the Respondent would have had but for these Orders.
(c) That Order 6(b) above has effect from the operative time.
(d) That the operative time is 4 business days after service of a sealed copy of these orders on the Trustee of Super Fund 1.
(e) That this Order binds the Trustee of Super Fund 1.
7. The matter is otherwise adjourned for mention before Judge O’Shannessy to 21 August 2024 at 10.00 am with such listing to be vacated when the intended final property orders, including the superannuation payment split orders, are made.
AND THE COURT NOTES THAT:
A. Upon proof of procedural fairness having being accorded to the Trustee of the superannuation fund, then subject to any submission of the Trustee, the parties having consented to, and the Court having found it is just and equitable pursuant to section 79(2) to make, Orders in the following form, the Court intends to make such Orders, as follows:
(a) Pursuant to section 79A(1A) Family Law Act 1975 (“the Act”) the previously made section 79 property settlement orders between the parties are set aside; and, the following final property settlement orders; and
(b) Pursuant to section 79 of the Act, save as provided in the orders of 19 July 2024 and in these orders, the parties retain all real and personal property in his and her possession and all and any liability relating to any such property; and
(c) Orders in the form of the draft superannuation payment split orders recited at order 6 (a) to (e) above.
(d) All extant applications are (will be) otherwise dismissed.
B. The minute of proposed consent orders provided to the court by the parties this day has been exhibited, marked ‘A’ and placed on the court file.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.