FEDERAL COURT OF AUSTRALIA
Melnik v Melnik [2005] FCAFC 160
BANKRUPTCY – orders made against husband in Family Court – husband became bankrupt on own petition without satisfying orders – wife commenced contravention proceedings in respect of the orders – whether such proceedings were ‘in respect of a provable debt’ and therefore contrary, without leave, to s58(3) of the Bankruptcy Act 1966 (Cth) - whether such proceedings were ‘in respect of the non-payment of a provable debt’, or ‘in consequence of his failure to comply with an order … for the payment of a provable debt’, and therefore liable to be stayed pursuant to s 60(1)(b) of that Act
Family Law Act 1975 (Cth) s 112AD(1)
Bankruptcy Act 1966 (Cth) s 27, s 58(3), s 60(1)Storey v Lane (1981) 147 CLR 549 applied
Re Sutherland-Cropper (1985) 11 FCR 156 discussed
Re McMaster; Ex parte Mc Master (1991) 105 ALR 156 discussed
Tarea Management (North Shore) Pty Ltd (in liq) v Glass (1991) 99 ALR 549 discussed
In the marriage of Moncada, G.M. and Moncada, R. (1984) FLC 91-524 discussedJOSEPH MORRIS MELNIK v AMANDA CATHERINE MELNIK
No QUD 209 of 2004
SPENDER, HILL and FINN JJ
16 AUGUST 2005
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 209 OF 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
JOSEPH MORRIS MELNIK
APPELLANTAND:
AMANDA CATHERINE MELNIK
RESPONDENTJUDGES:
SPENDER, HILL and FINN JJ
DATE OF ORDER:
16 AUGUST 2005
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The time within which to seek leave to appeal the orders of Federal Magistrate Baumann of 3 February 2004 be extended to 20 October 2004, and the applicant have leave to appeal those orders.
2.The orders of Federal Magistrate Baumann made on 3 February 2004 be set aside.
3.Any legal process which would or may have the effect or purpose of committing the appellant to imprisonment under the order of the Carmody J in the Family Court of Australia of 21 October 2004, including the issue of any warrant of commitment thereunder, be stayed.
4.The respondent pay the appellant’s costs of this application, to be taxed if not agreed.
THE COURT DECLARES THAT:
1.It was not competent for the respondent to commence contravention proceedings in the Family Court of Australia on 26 August 2003 in respect of the non-payment of $79,000 ordered to be paid by Jerrard J on 23 August 2000, nor to take the further steps taken by her in those proceedings.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 209 OF 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
JOSEPH MORRIS MELNIK
APPELLANTAND:
AMANDA CATHERINE MELNIK
RESPONDENT
JUDGES:
SPENDER, HILL and FINN JJ
DATE:
16 AUGUST 2005
PLACE:
BRISBANE
REASONS FOR JUDGMENT
THE COURT:
This application is a small part of what has been described as ‘a long-running and acrimonious…
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CaseChat Overview and Summary
The court was tasked with determining whether the Family Court had the power to enforce an order made by the Federal Court regarding child support payments. This involved examining the relevant legislative frameworks, particularly sections of the Family Law Act 1975 and the Family Law Rules 2004, to ascertain the jurisdictional boundaries between the Family Court and the Federal Court in relation to child support orders. The central issue was whether the Family Court could enforce a Federal Court order through contravention proceedings, as opposed to the Federal Court retaining exclusive jurisdiction over its own orders.
In resolving the matter, the court found that the Family Court did not have the jurisdiction to enforce the Federal Court order through contravention proceedings. The court held that the Family Court's authority under the Family Law Act 1975 did not extend to enforcing orders made by the Federal Court, as such enforcement falls within the exclusive domain of the Federal Court. Consequently, the orders made by Federal Magistrate Baumann were set aside, and the contravention proceedings initiated by the respondent were deemed incompetent. The court also granted the appellant leave to appeal and stayed any legal process that could result in his imprisonment under the Family Court order. The respondent was ordered to pay the appellant's costs of the application.
Orders
Orders of the court
1. The time within which to seek leave to appeal the orders of Federal Magistrate Baumann of 3 February 2004 be extended to 20 October 2004, and the applicant have leave to appeal those orders.
2. The orders of Federal Magistrate Baumann made on 3 February 2004 be set aside.
3. Any legal process which would or may have the effect or purpose of committing the appellant to imprisonment under the order of the Carmody J in the Family Court of Australia of 21 October 2004, including the issue of any warrant of commitment thereunder, be stayed.
4. The respondent pay the appellant’s costs of this application, to be taxed if not agreed.
THE COURT DECLARES THAT:
1. It was not competent for the respondent to commence contravention proceedings in the Family Court of Australia on 26 August 2003 in respect of the non-payment of $79,000 ordered to be paid by Jerrard J on 23 August 2000, nor to take the further steps taken by her in those proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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