Benson and Benson (No 3)

[2018] FamCA 270

FAMILY COURT OF AUSTRALIA

BENSON & BENSON (NO 3) [2018] FamCA 270

FAMILY LAW – JURISDICTION – where order not relating to property in existence – where order a nullity – enforcement not appropriate where original order a nullity

Barlow v Law Society of the ACT [2017] ACTSC 35
Harold & Harold [2016] FamCA 585
Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435
Shan & Prasad [2018] FamCAFC 12
Stanford v Stanford (2012) 247 CLR 108

APPLICANT: Ms Benson

RESPONDENT: Mr Benson

FILE NUMBER: CAC 599 of 2013

DATE DELIVERED: 24 April 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 24 April 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Mr Routh, Farrar Gesini Dunn

Orders

1. I direct that Order 2 proposed in the orders of 7 February 2018 is not made.

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 Benson & Benson (No 3) 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 CANBERRA

FILE NUMBER: CAC 599 of 2013

Ms Benson

Applicant

And

Mr Benson

Respondent

REASONS FOR JUDGMENT

1. An order was previously made by Federal Circuit Court Judge Neville purportedly pursuant to s 79 of the Family Law Act.  That order was directed to the husband dealing in the future with something that was not then in existence at the time of the orders. That is, there was an obligation purportedly imposed upon him to make future payments in order to make a superannuation fund compliant with the relevant laws. 

2. The order was directed to something that did not constitute an interest held by the parties in any property.  The order was directed to the payment of funds, those funds not being in existence and for which in no sense the husband had any property right.  It is implied in the case of Stanford v Stanford (2012) 247 CLR 108 and made clear in Shan & Prasad [2018] FamCAFC 12 that the jurisdiction to make property orders is attached to the existence of property. There is no jurisdiction to make property orders against something that is not at that stage in existence and it was made clear in Shan & Prasad that the Court cannot create property in order to make an order directed to the alteration of property interests. That appears to be what has occurred here. 

3. Accordingly, the order made by Judge Neville was beyond jurisdiction.  I have helpfully been taken to the High Court case of Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435. There it notes that where an inferior tribunal exercising judicial power has no authority to make the order, the order is a nullity. The context of that decision related to dealing with a person for contempt for breach of an order. The principle that it is a nullity appears to be broader than that.

4. I was helpfully also taken to the decision of Justice Penfold in Barlow v Law Society of the ACT [2017] ACTSC 35 which characterised the Federal Circuit Court in a similar manner to the District Court of New South Wales as being an inferior court of record. Further, and again helpfully, I was directed to the decision of Justice Carew in Harold & Harold [2016] FamCA 585 where she there applied Pelechowski in relation to a Federal Circuit Court order made without jurisdiction.  In that particular case of Harold the order had initially been made by consent, but Justice Carew found that it was beyond the jurisdiction of the Court and was a nullity.

5. In this particular instance the orders that I proposed to make were in aid of orders made by Judge Neville in relation to the future payment of monies to make a superannuation fund compliant.  Those orders made by Judge Neville are a nullity and so there is no utility, propriety or authority in me making an order in aid of their enforcement and hence the proposed Order 2 of 7 February 2018 will not be made.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 24 April 2018.

Associate: 

Date: 24 April 2018