HAROLD & HAROLD

[2016] FamCA 585

FAMILY COURT OF AUSTRALIA

HAROLD & HAROLD [2016] FamCA 585

FAMILY LAW – CONTRAVENTION – Whether the father contravened an order by consent to pay half the children’s school fees - Where the Federal Circuit Court did not have the power to make the order – Where the order null and void – Where the father cannot be found to have contravened the order – Application dismissed.  

Family Law Act 1975 (Cth) s 66E
Child Support (Assessment) Act 1989 (Cth)

Pelechowski v Registrar [1999] HCA 19

APPLICANT: Ms Harold

RESPONDENT: Mr Harold

FILE NUMBER: BRC 9354 of 2010

DATE DELIVERED: 19 July 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 19 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Self-represented

COUNSEL FOR THE RESPONDENT: Self-represented

Orders

1. That the Application – Contravention filed 21 April 2016 is dismissed.

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 Harold & Harold 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 BRISBANE

FILE NUMBER: BRC 9354  of 2010

Ms Harold

Applicant

And

Mr Harold

Respondent

EXTEMPORE REASONS FOR JUDGMENT

1. This is an Application – Contravention brought before me by the applicant mother, Ms Harold (“the mother”) seeking to have the respondent father, Mr Harold (“the father”) dealt with for contravening an Order made by the Federal Circuit Court on 13 May 2014 and in particular paragraph 9 of that Order, which provides that the father is to pay for half of the children’s school fees including but not limited to uniforms, books, stationary and school trips.

2. The father and mother continued until this year to each pay half of those fees but the father became redundant in December 2015 and has not made his contribution towards school fees since that time.

3. Unfortunately for the applicant, the Court had no power to make the Order because s 66E of the Family Law Act 1975 (Cth) relevantly provides that:

   (1)A court having jurisdiction under this Part must not, at any time, make, revive or vary a child maintenance order in relation to a child on the application of a person (the applicant) against, or in favour of, a person (the respondent) if an application could properly be made, at that time, by the applicant under the Child Support (Assessment) Act 1989 for the respondent to be assessed in respect of the costs of the child, or vice versa.

   (2)Subsection (1) has effect whether or not an application for administrative assessment of child support for the child has in fact been made (whether by the applicant, the respondent or another person).

4. It is common ground that an application could properly have been made by the applicant under the Child Support (Assessment) Act 1989 (Cth). Indeed, the parties have ongoing contested claims before the Child Support Agency at this time.

5. In the decision of Pelechowski v Registrar [1999] HCA 19, Gaudron, Gummow and Callinan JJ considered the circumstances where the appellant in that case had been found to be in contempt of an order made by the District Court. It was argued by the appellant that the District Court did not have power to make the order and thus he could not be held in contempt. In the process of considering that appeal, which was successful, the High Court considered a number of cases including Attorney General of New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342 and cited with approval the comments by McHugh JA as follows:

   If an inferior tribunal exercising power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt.  Such an order is a nullity.

6. Although the Federal Circuit Court is created pursuant to Chapter III of the Constitution it is an inferior court of record and thus the Order made, even though by consent, was null and void. The father cannot be found to have contravened an Order which the Court had no power to make in the first instance.

7. In any event, I note that the father contends that he no longer has the financial capacity to contribute to private school fees given his having been made redundant in December 2015.

8. Accordingly, the Application – Contravention filed 21 April 2016 is dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 19 July 2016.

Associate: 

Date:  19 July 2016