Simsek & Child Support Registrar
[2024] FedCFamC2F 364
•23 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Simsek & Child Support Registrar [2024] FedCFamC2F 364
File number(s): MLC 9864 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 23 February 2024 Catchwords: FAMILY LAW - Unpaid child maintenance – where payer father was not present in Australia – where payer father became entitled to a sum of money from his mother’s estate – where payee mother has passed – garnishee order against the estate of payer father’s mother – unpaid child support found payable to payee mother’s estate. Legislation: Child Support Registration and Collection Act 1988, section 72 Division: Division 2 Family Law Number of paragraphs: 17 Date of last submission/s: 29 February 2024 Date of hearing: 23 February 2024 Place: Melbourne Counsel for the Applicant: Mr Heggie Solicitor for the Applicant: Barbayannis Lawyers Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: Mr Robinson Solicitor for the Second Respondent: Mitchell Family Law Pty Ltd Solicitor for the Third Respondent: S Kourkoulis & Associates ORDERS
MLC 9864 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SIMSEK
Applicant
AND: CHILD SUPPORT REGISTRAR
First Respondent
MS DOGAN
Second Respondent
MR LIPPMAN
Third Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
23 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Ms Dogan in her capacity as executor of the estate of Ms B be and is hereby joined as the Second Respondent.
2.Mr Lippman (also known as Mr C) in his capacity as executor of the estate of Ms D be and is hereby joined as the Third Respondent.
3.Within 7 days of the date of these Orders, the Applicant and the Third Respondent do all acts and things to cause $100,000 ("the Payment") to be paid from the Applicant's entitlement in the estate of Ms D as follows:
(a)$62,330.26 of the Payment to the Child Support Registrar;
(b)$2,449.10 of the Payment to the Child Support Registrar; and
(c)$35,220.64 of the Payment to the executor of the estate of Ms B;
in full satisfaction of any arrears and/or liability said to arise pursuant to the Final Orders made in late 2011 ("the 2011 Orders").
4.Upon the making of the payments referred to in Orders 3(a), 3(b) and 3(c) herein:
(a)the 2011 Orders be discharged NOTING THAT the s72A notice dated 18 January 2023 directed to Mr Kourkoulis, solicitor for the executor of the estate of Ms D, will lapse;
(b)IT IS DECLARED that the Applicant's liability for child support and/or adult child maintenance provided by the 2011 Orders be discharged; and
(c)all extant applications be and are hereby dismissed.
5.The Applicant and the Second Respondent forthwith provide a sealed copy of these Orders to the executor of the estate of Ms D.
6.IT IS DIRECTED THAT the Solicitor for the Applicant notify chambers by email promptly of the payment and ensure all other parties are CC’d in correspondence. Following one day after receipt of the email confirming that payment has been made, a Chambers order will be made dismissing all extant applications.
AND THE COURT NOTES THAT:
A.On full payment of the amounts under order 3(a) and (b), the Child Support Registrar agrees that a recommendation will be made for the remission of the balance of the late payment penalties.
B.The First Respondent does not consent nor oppose order 3(c).
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
INTRODUCTION
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, slips in recitation of evidence or authority, to add citations and passages of authorities, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
BACKGROUND
The unusual nature of this multi-party litigation meant that, although a consent order, the parties had briefed counsel to ensure that the Court was persuaded that the Orders were just and equitable and otherwise proper. For the reasons that follow, I was so persuaded.
In the matter of Simsek, the Child Support Agency, the estate of Ms B, and the estate of Ms D, a rather complicated child support enforcement matter comes before me. Fortunately for the Court, and for me, the multiple parties have been assisted in a potentially very difficult and expensive piece of litigation by competent solicitors and counsel. It is also apparent to me that the individual parties have had the courage and the maturity to take account of legal advice and of the practicality of the world.
2011 Orders
The underlying circumstances are that the late Ms B and Mr Simsek had two children, Ms F and Ms G. Ms F and Ms G are now 33 and 35. Proceedings were brought before this Court, as it then was, that resulted in Final Orders in late 2011. Those Orders had unusual aspects to them, and at that time, the adult children were aged about 21 and 23. Those Orders made provision for adult child maintenance, arrears of child support and reimbursement of the costs of raising the children.
Prior to those Orders, the Respondent to those Orders - that is, the payer, or father of Ms F and Ms G - had left the Commonwealth of Australia. The Respondent to those Orders did not appear at that hearing and the Orders were made without his assistance to the Court. Thereafter, the component of the Court Orders that related to adult child maintenance was registered with the Child Support Agency. Those Orders included an order for costs as follows:
4)The Respondent pay the Applicant’s costs fixed at $12,103.00 within 56 days.
Further, back in 1992, there had been an assessment of child support made and some amount regarding that assessment was unpaid and has remained unpaid to this day. The payee mother of the children, Ms B, passed in 2015. The mother of the Respondent (father) to the late 2011 Orders passed in 2022.
I am satisfied, and I infer, that as a result of the passing of Ms D, the mother of the Respondent (father) to the 2011 Orders, that the Respondent became entitled to some property or sum of money.
THESE PROCEEDINGS
The circumstance of the Respondent to the 2011 Orders - the Applicant in the current application before me - being entitled, or being thought to be entitled, to a sum of money from the estate of his mother triggered the Child Support Agency to issue a notice pursuant to section 72 of the Child Support Registration and Collection Act 1988. That is, in effect, a garnishee order against those conducting the estate of the late Ms D. The estate of the late Ms D and the solicitors for that estate abided by that section 72A notice. Section 72A of that Act provides as follows:
(1)The Registrar may give written notice to a person:
(a) by whom money is due or accruing, or may become due, to a relevant debtor; or
(b) who holds, or may subsequently hold, money for or on account of a relevant debtor; or
(c) who holds, or may subsequently hold money on account of some other person for payment to a relevant debtor; or
(d) who has authority from some other person to pay money to a relevant debtor;
requiring that person to pay the Registrar:
(e) if the amount of money is more than the maximum notified deduction total -- an amount equal to the maximum notified deduction total; or
(f) if the amount of money is equal to or less than the maximum notified deduction total -- the amount of money; or
(g) if the notice specifies an amount of money that is to be paid out of each payment that the notified person becomes liable, from time to time, to make to the debtor -- that amount until the maximum notified deduction total is satisfied.
The notice triggered Mr Simsek to make an application in these proceedings. The immediate Respondent to the proceedings was the Child Support Registrar. However, there were negotiations between the Applicant - that is, the payer Father and absent Respondent to the 2011 orders - on the one hand, and the Child Support Registrar on the other; and the estate of Ms B, the Applicant to the 2011 orders and person entitled to child support and the benefit of those orders, and the estate of Ms D. Those negotiations were sensible, but no doubt painful and marked with grief.
Those negotiations resulted in a practical compromise and all parties now agree that I should make orders that reflect their agreement and compromise. I am satisfied and infer that there will be unhappy aspects to this compromise. Nonetheless, that makes it, or contributes to, why this is a sensible and practical solution. I want to acknowledge what I regard as the courage and maturity of the individual people behind these orders and the experience, common sense, and expertise of the lawyers involved in this outcome.
The Orders provide that a sum of approximately $62,330 will be paid by the estate of Ms D, effectively reducing the entitlement that the payer (father of the children) and applicant to these proceedings would otherwise receive from that estate. The same applies to a further payment of approximately $2,449 to the Child Support Registrar and a further payment of approximately $35,220 to the estate of the late Ms B. The money that is paid to the Child Support Registrar will ultimately end up with the estate of Ms B and be distributed in accordance with law as to her estate.
The amount of $62,330 at least notionally relates to the registerable obligation relating to the adult child maintenance aspect of the Order of late 2011. The $2,449 payment at least notionally relates to arrears under the 1992 assessment of child support, and the payment of $35,220 at least notionally relates to the further obligations that purported to be imposed on the payer Father, Mr Simsek, back in 2011. The total of those payments adds up to the total payment of an even and round $100,000.
It is common ground between the four parties to the proceedings this day that, firstly, I have jurisdiction to make these Orders and, secondly, that it is proper to make these Orders. I note that by these Orders by consent, the executor of the estate of Ms B is joined as the second Respondent to the proceedings.
The other aspect regarding the orders I am asked to make is it includes the important notation, as follows:
A. On full payment of the amounts under order 3(a) and (b), the Child Support Registrar agrees that a recommendation will be made for the remission of the balance of the late payment penalties
It is common ground between all of the parties that the remission of late payment penalties is a matter for the Child Support Registrar and this Court cannot bind the Registrar in that regard. Nonetheless, it is also common ground that Mr Simsek consents to these Orders and will make the payments described therein in reliance upon that notation and that recommendation. The other aspect is that order 4(c) provides that it is only upon the making of the payments referred to that all extant applications be and are dismissed.
I will make the further direction by the consent of all parties that the solicitors for the Applicant, Mr Simsek, will notify my Associate by email promptly after that payment is made. The following day after receipt of that email, I will then make the further Order in chambers, which will be cc'd to all other parties, that all extant applications be and are hereby dismissed.
So, I express my gratitude to the people behind the parties and I express my gratitude to the solicitors and counsel involved in this case that in different hands could have consumed days and days of court time, and literally tens and tens of thousands of dollars. I am grateful to everyone for that.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 25 March 2024
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