Theo and Theo

[2012] FamCA 727

FAMILY COURT OF AUSTRALIA

THEO & THEO [2012] FamCA 727

FAMILY LAW – ORDERS – Where previous order made for the repayment of a large amount of money by the respondent to the applicant– Where respondent cannot be located – Where the applicant seeks an order that third parties provide information as to the whereabouts of the respondent - Where Court has no source of power to make such order in property proceedings – Application dismissed

Family Law Act 1975 (Cth) s 67J, s 67N, s 79, s 90AF, s 112A, s 114, Part VII, Part VIIIAA

Ascot Investments Pty Ltd v Harper and Harper (1981) 148 CLR 337
DJL v The Central Authority (2000) 201 CLR 226

APPLICANT: Mr Theo

RESPONDENT: Ms Theo

FILE NUMBER: BRC 6164 of 2010

DATE DELIVERED: 28 August 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 21 May 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Carter Farquar
Mediation & Family Law

FOR THE RESPONDENT: No Appearance

Orders

1. The husband’s Application in a Case filed 6 December 2011 seeking orders against third parties that they provide information from their records as to the name and address of the wife is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Theo & Theo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6164  of 2010

Mr Theo

Applicant

And

Ms Theo

Respondent

REASONS FOR JUDGMENT

The Nature of the Application

1. The Applicant husband applies to the Court for orders that Centrelink, Medicare, the Commonwealth Department of Immigration and Citizenship, the Australian Taxation Office and the National Insurance office in the country of Norway provide from their records such information that they may possess or that might come into their records about the address and telephone number of the Respondent wife.

2. The application is another step in litigation between the husband and wife that has been ongoing in this Court for several years.

3. On 22 September 2005, property adjustment orders were made by Jordan J in proceedings between the parties. His Honour’s orders included an order that the husband pay the wife $200,000 on account of her costs in those proceedings. An application brought by the husband seeking a stay pending appeal was unsuccessful and the husband paid the money to the wife.

4. On 16 March 2007, the husband’s appeal against Jordan J’s costs order was allowed and the Full Court ordered that the wife hold the sum of $200,000 upon trust for herself and the husband pending further hearing and determination of the costs issue.

5. The matter was mentioned by Jordan J on 17 April 2008 and there was no appearance by or on behalf of the wife. On that day, his Honour made directions with respect to service of documents upon the wife and listed the matter for hearing on 5 November 2009.

1. The wife did not appear on 5 November 2009 and Jordan J dismissed the wife’s application for costs and ordered that she pay to the husband the sum of $200,000 which was held by her pursuant to the orders of the Full Court.

2. The wife has, to date, not complied with Jordan J’s orders. The husband does not know the wife’s whereabouts and believes that she could be living in Norway, her country of origin, or in Australia.

3. The husband sought to have the wife punished for contempt of court pursuant to s 112AP of the Family Law Act 1975 (Cth) (“the Act”) but that application was dismissed by Stevenson J on 4 April 2011, principally because her Honour was not satisfied that the wife had knowledge of the contents and meaning of the orders of 5 November 2009.

4. The husband brings this application now seeking to obtain information that will enable him to locate the wife and, presumably, serve her with the orders and a demand that she comply with them.

5. The Respondent wife did not appear at the hearing of the application before me.

The Merits of the Application

1. The husband’s solicitor conceded that there is no power expressly conferred on the Court in the Act to order any of the third parties to produce the information the husband seeks.

2. Of course, there is power in the Court to make a Commonwealth Information Order in certain circumstances. (See s 67N of the Act). Such orders made pursuant to this section may direct Commonwealth instrumentalities (such as Centrelink and Medicare) to provide information about a child’s location contained in or that comes into the records of that instrumentality. A Commonwealth Information Order is expressly defined in s 67J(2) of the Act. It is a location order described in paragraph (1)(b) of s 67J as being an order by a court requiring the Secretary of a Department, or an appropriate authority of a Commonwealth instrumentality, to provide the Registry Manager of the Court with information about the child’s location that is contained in or comes into the records of the Department of instrumentality.

3. The statutory provisions to which I have just referred are contained in Part VII of the Act which is headed “CHILDREN” and it is clear, from the specific wording of the provisions, that the power to make orders under this Part exists only in relation to locating a child for the purposes of parenting proceedings in the Court. These provisions cannot, I am satisfied, be used as the source of a power to make orders directed at third parties, be they Australian Government Departments or instrumentalities or instrumentalities of a foreign Government to produce information in proceedings that are unrelated to parenting.

4. The husband did not submit that any of the provisions of Part VIIIAA of the Act which is headed “ORDERS AND INJUNCTIONS BINDING THIRD PARTIES” provide the Court with the power to make the orders that he seeks. I am satisfied that he gets no assistance from any of the provisions of that Part.

5. The Part contains provisions which purport to allow the Court, in relation to the property of a party to a marriage, to make an order under s 79 or s 114 or grant an injunction under s 114 that is directed to, or alters the rights, liabilities or property interests of a third party. (s90AA)

6. More particularly, s 90AF gives the Court power in proceedings under s 114 to make an order restraining a person from repossessing property of a party to a marriage or to grant an injunction restraining a person from commencing legal proceedings against a party to a marriage. Further, it gives the Court power in proceedings under s 114 to make an order or grant an injunction that directs a third party to do a thing in relation to the property of a party to the marriage or alters the rights, liabilities or property interests of a third party in relation to the marriage.

7. Further, s 90AF(3) provides that the Court may only make such an order or grant such an injunction if certain pre-conditions are satisfied. They are set out in s 90AF(3)(a) to (f). Relevantly, the first one of those requires the Court to be satisfied that

   the making of the order, or the granting of the injunction, is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage.

8. Final orders in respect of property division between the parties in this matter were made several years ago. They are not the subject of these continued proceedings that relate solely to legal costs and the wife’s obligation to pay back money that was paid to her in compliance with a costs order that was set aside on appeal. Accordingly, I am not satisfied that the orders sought are reasonably necessary, or are reasonably appropriate and adapted, to effect a division of property between the parties. Neither am I satisfied that they are orders that would, if made, direct the third parties to do a thing in relation to the property of a party to the marriage or alter the rights, liabilities or property interests of the third parties in relation to the marriage.

9. In this regard, I am satisfied that the words of Gibbs J (as he then was) in Ascot Investments Pty Ltd v Harper and Harper (1981) 148 CLR 337 have application, where his Honour said:

it would be unreasonable to impute to the Parliament an intention to give power to the Family Court to extinguish the rights, and enlarge the obligations, of third parties, in the absence of clear and unambiguous words.

1. As such, I am quite satisfied the powers provided for in s 114 and s 90AF are not available to me in this case.

2. The husband’s solicitor did urge me to consider the Court’s inherent power, suggesting the power might be found there.

3. It is well established that this Court is purely a creature of statute with limited jurisdiction. It has no inherent power to make orders against third parties obliging them to do that which they are otherwise not obliged to do.  Nor, in my view, is any such power derived by necessary implication from the statutory structure. (See DJL v The Central Authority (2000) 201 CLR 226

4. Accordingly, I am not satisfied that I have the power to make the orders the husband seeks and I, therefore, dismiss his application.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 28 August 2012.

Associate: 

Date:  28 August 2012