Hamer and Hamer

[2011] FamCA 1010

FAMILY COURT OF AUSTRALIA

HAMER & HAMER [2011] FamCA 1010

FAMILY LAW – ENFORCEMENT OF ORDERS - Recovery of overpayment made under an order – Consideration of word “obligation”

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662
Porter v Latec Finance (Qld) Pty Ltd (1964) 111 CLR 177

APPLICANT: Mr Hamer

RESPONDENT: Ms Hamer

FILE NUMBER: MLC 8840 of 2007

DATE DELIVERED: 16 November 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 31 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Melilli

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr Kiernan

SOLICITOR FOR THE RESPONDENT: D Nelson

Orders

1. That the wife pay to the husband the sum of $20,000.00 forthwith.

2. That the wife pay the husband’s costs of these proceedings as agreed between the parties and failing agreement, as assessed.

3. It is certified that it was reasonable in the circumstances to brief counsel to attend.

4. That the application in a case filed by the husband on 5 September 2011 and the response thereto filed 31 October 2011 are otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Hamer & Hamer is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8840 of 2007

Mr Hamer

Applicant

And

Ms Hamer

Respondent

REASONS FOR JUDGMENT

1. On 18 May 2005, Kay J made final orders between the parties that required the husband to pay to the wife regular payments. 

2. By process of effluxion of time, the last payment fell due in 2010.  The payments were made by direct debit from the husband’s bank account to that of the wife.  Despite the obligation having been fulfilled, four further payments totalling $20,000 were made in October 2010, January 2011, April 2011 and July 2011.  It was at that point the mistake was discovered.

3. The husband seeks a recovery from the wife for the over-payment.  The wife resists the application on the basis that there is no jurisdiction of the Court to make any orders as it was functus officio in 2005 and that this application thus cannot be said to be the enforcement of any order because the order has been executed and completed.

4. The argument of each of the parties was limited.  The facts were not really in dispute.  The wife conceded she received the money.  Her Counsel conceded that it might be a matter for another court but her argument related to the jurisdiction and power of the Family Court to make any orders at all.

5. The husband’s argument was that there was an obligation under the orders for the husband to pay the wife, that that obligation had been over-paid, and therefore that the obligation fell on the wife to repay the money to the husband.

6. There is no provision in the Family Law Act 1975 nor in the Family…