No contravention found, when father failed to pay the children’s private school fees after separation

The recent case of Harold and Harold (2016) found that a father did not contravene orders made by consent to pay half the children school fees.

In this case the mother, Mrs Harold filed a contravention application against  Mr Harold, father where she and the father entered into consent orders whereby the father would pay half of all the children school fees including but not limited to uniforms, books, stationery and school trips.

Mr and Mrs Harold continued to pay half of those fees, until around early 2016 when the father lost his job.  In fact Mr Harold informed the Court that he had no capacity to pay for the private school fees as his financial circumstances had signifcantly changed.

The Court found that not only did the father not contravene the orders, but that the Court had no power to make such an order because section 66 E of the Family Law Act provided that the Court must not at any time make a child maintenance order if an application could properly be made at that time by the applicants under the Child Support (Assessment) Act 1989 for the respondent to be assessed by the child support agency.

The Court held that the orders made by consent were null and void and that Mr Harold could not be found to have contravened an order in which the court had no power to make it in the first instance.

The payment of school fees when parents are separating or going through a divorce is a very important discussion and consideration. There is nothing worse, that when everything is settled that the payment of private school fees remains unresolved.

If you are a separated parent and require legal advice on the payment of private school fees, please contact us on 02 8999 1800.