Iverson and Iverson (No.3)
[2008] FMCAfam 259
•20 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| IVERSON & IVERSON (No.3) | [2008] FMCAfam 259 |
| FAMILY LAW – Enforcement of order – garnishment order – protected earnings rate. |
| Family Law Act 1975 (Cth) s.105 Federal Magistrates Court Rules 2001(Cth) r.25B.05 Family Court Rules 2004 (Cth) r.20.4 |
| Iverson & Iverson (No.1) [2007] FMCAfam 257 Iverson & Iverson (No.2) [2007] FMCAfam 390 |
| Applicant: | MS IVERSON |
| Respondent: | MR IVERSON |
| File Number: | MLC10080 of 2007 |
| Judgment of: | O'Sullivan FM |
| Hearing dates: | 3 & 10 December 2007 |
| Date of Last Submission: | 8 February 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 20 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr James on 3 December 2007 |
| Solicitors for the Applicant: | Pearsons until 19 March 2008 |
| Counsel for the Respondent: | Ms Bonney on 3 December 2007 |
| Solicitors for the Respondent: | GPZ Legal |
ORDERS
There be no garnishment order.
The wife file and serve submissions on whether a sequestration order ought be made against the husband within 14 days.
The husband file and serve submissions in reply within 14 days thereafter or 28 days from today’s date in the event there are no submissions filed on behalf of the wife.
IT IS NOTED that publication of this judgment under the pseudonym Iverson & Iverson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 10080 of 2007
| MS IVERSON |
Applicant
And
| MR IVERSON |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
These reasons concern orders to be made because of the husband’s contravention of the orders made by this Court on 1 November 2006.
Background
The background to the proceedings is set out in Iverson & Iverson (No.1) [2007] FMCAfam 257 (“Iverson (No.1)”) and Iverson & Iverson (No.2) [2007] FMCAfam 390 (“Iverson (No.2)”). I do not intend to rehearse it again.
At this stage, it is sufficient for present purposes to note that in November 2006, the husband had been ordered to pay $1,515.00 in costs and there were final property orders made. On 4 May 2007 as a result of the wife’s contravention application (heard 11 April 2007), being proven the husband was fined $3,300.00[1] in Iverson (No.1). Orders were then made on 14 June 2007 in Iverson (No. 2) as follows:
“1.The husband pay the wife’s costs of the proceedings on 11 April 2007 fixed in the amount of $3,955.00 within 21 days of the date of these orders.
2.The wife provide to the husband within 21 days two quotations from two separate authorized repairers to restore the car back to ‘good order’ as required in the Orders of 1 November 2006.
3.The husband pay the wife’s reasonable costs as set out in order 2 above less the value of the car as delivered within a further 21 days or as agreed.
4.Failing the husband’s compliance with order 3 herein the wife have liberty to apply on 14 days notice for an order to garnishee the husband’s wages for the amount determined in accordance with Order 3 above.
5.The parties have liberty to apply within 14 days of the date of this order in the event that there is a dispute as to the meaning of ‘good order’ in relation to the quotations as referred to in Order 2.”
[1] Iverson (No. 1)
Hearing on 3 December 2007 regarding compliance with June Orders
Despite the liberty to apply provided for in order 5 above neither party sought to invoke that liberty. The application filed on 11 September 2007 by the wife was for the matter to be re-listed and she sought the following orders:
“1.That the Applicant have liberty to list this Application for hearing within 4 days pursuant to Order (4) of the Orders made by Federal Magistrate O’Sullivan made on the 14th day of June, 2007.
2.That a garnishment order be made requiring the Husband’s employer being the E Hospital or such other employer that the Husband may have from time to time (“the employer”) to pay to the Wife such weekly or monthly sum as deemed appropriate by this Honourable Court to satisfy the total sum sought by the Wife being $57,470 (fifty seven thousand, four hundred and seventy dollars) together with the Wife’s costs of and incidental to these proceedings including but not limited to the costs associated with obtaining the two valuations.
3.Any other Order that the Court deems appropriate.”
The wife’s position was that the husband had not paid:
·the costs ordered in November 2006;
·the fine imposed in the May orders;[2] and
·the costs ordered in the June orders.[3]
[2] Iverson & Iverson (No.1) [2007] FMCAfam257
[3] Iverson & Iverson (No.2) [2007] FMCAfam390
The wife deposed to her compliance with the orders made in June 2007. The wife’s affidavit filed 10 September 2007 annexed 2 quotations to restore the motor vehicle (the subject of the orders in November 2006) to ‘good order’. It was against this background that the wife wished to invoke order 4 of the orders made 14 June 2007 to garnishee the husband’s wages.
Subsequent to receipt of the wife’s application that the matter be re-listed, the husband filed a response and an affidavit on 21 November 2007.
The matter was listed for hearing on 3 December 2007. Mr James of Counsel appeared on behalf of the wife and Ms Bonney appeared on behalf of the husband.
As had already been determined and for reasons set out in the decision in Iverson (No.1) the husband had been found to have contravened the orders made in November 2006. Despite this, the husband’s position before the Court on 3 December 2007 was as it had been at the hearing of the contravention application in April 2007. The husband’s position was that he had delivered the car as is.
The husband, whilst rejecting the valuations annexed to the wife’s affidavit and filed 10 September 2007 acknowledged he had done nothing to bring the matter back before the Court for any dispute over the meaning of ‘good order’ in either the November 2006 orders, the orders made in Iverson (No.1) or the orders in Iverson (No.2). The husband had not pursued an appeal in relation to any of those orders.
Having explained his position regarding those orders Counsel for the husband nonetheless told the Court her client would consent to a garnishment order to cover the costs orders in November 2006 and those in Iverson (No. 2). The Court was also told he would attend to the payment of the fine imposed in the orders in Iverson (No.1) within 14 days. Counsel for the husband told the Court from the bar table her client would have to borrow that money from his parents.
Having heard from Counsel for each of the parties and on the basis of the material before the Court it was clear there was not sufficient material before the Court to make a garnishment order the following orders were made on 3 December 2007:
“1.The Husband pay to the wife’s solicitors, Pearsons Barristers and Solicitors, the wife’s costs of $1,515.00 pursuant to the orders made on 1 November 2006 and costs of $3,955.00 pursuant to orders made on 14 June 2007 (being a total of $5,470.00) in full by 10 December 2007.
2.In the event that the husband fails to fully comply with Paragraph 1 herein a warrant for the arrest of the husband forthwith issue for his breach of orders made on 4 May 2007.
3.The husband file and serve by midday on 7 December 2007 a Form 13 Financial Statement for the purpose of the Court establishing a normal deduction rate and a protected earnings rate for a garnishment order to satisfy the wife’s reasonable costs pursuant to paragraph 3 of the orders made 14 June 2007 fixed in the sum of $36,000. (“the sum”).
4.The proceedings be otherwise adjourned to 10 December 2007 at 2:15pm for the purpose of making a garnishment order against the husband with respect to the sum.”
5.The wife be excused from attendance at the hearing on 10 December 2007 at 2:15pm.”
Hearing on 10 December 2007
Pursuant to the orders of 3 December 2007, the applicant wife had been excused from attendance on 10 December 2007. Prior to the hearing on that date her solicitors indicated notwithstanding the orders made on
3 December 2007her costs had not been paid.
On 10 December 2007 Mr Galatis, solicitor appeared on behalf of the husband and orders were made pursuant to Rule 16.05 of the Federal Magistrates Court Rules 2001 (“the Rules”) vacating order 2 of the orders made on 3 December 2007 as the Court was satisfied it did not reflect the intention of the Court.
In response to questions from the Court Mr Galatis indicated that notwithstanding what Counsel for the husband had told the Court on
3 December 2007his client had not paid the fines. Mr Galatis claimed there had been confusion concerning under which order that fine had been imposed. No submissions were made regarding any attempt by the husband to make arrangements to find the funds to meet that fine or the outstanding costs orders.
In submissions before the Court Mr Galatis agreed that to determine properly the issue of the efficacy of any garnishment order there ought to be the opportunity for both parties to make submissions on the protected earnings rate. Accordingly directions were issued for the filing of material by both parties on the calculation of the protected earnings rate for a garnishment order to:
a)cover the wife’s costs; and
b)meet the wife’s costs of restoring the vehicle the subject of the November 2006 orders to ‘good order’ (which those orders required the vehicle to be delivered in to the wife and) which order the husband had been found to have contravened in June 2007.
Those orders were:
“1.Order 2 of the Orders of 3 December 2007 be vacated.
2.The Respondent have until 17 December 2007 to file and serve submissions in writing on the protected earnings rate (as calculated in accordance with the Family Law Rules 2001 and setting out the basis of those calculations) for a garnishment order to meet the wife’s reasonable costs pursuant to paragraph 3 of the orders of 14 June 2007 fixed in the sum of $36,000.00 and the costs awarded to the wife being $5,470.00 in total (pursuant to the orders of 1 November 2006 and 14 June 2007).
3.The Applicant have until 24 December 2007 to file and serve any submissions in reply to those in order 2 hereof.
4.The matter be otherwise adjourned to a date to be fixed for the purposes of making garnishment orders.”
Submissions of the husband – on garnishment order
In accordance with the above directions the husband filed submissions on 17 December 2007 as follows:
“1.Part 20.4 of the Family Court Rules 2004 is the applicable Part.
2.Pursuant to Rule 20.32, a Third Party Debt Notice may be sought by the Payee (in this case the Wife) from the Family Court.
3.The wife has not sought a Third Party Debt Notice in this case and has not proceeded in accordance with the Rules.
4.In any event, having regard to the orders made by the court on the 10th of December 2007, the Husband has had regard to and been informed by Rule 20.32 in complying with the Court orders.
5.Paragraph 20.32(2)(b)(iv)(C) refers to the Protected Earnings Rate which the court must have regard to in directing a Third Party, in this case the Husband’s employer, to deduct monies for payment to the Payee.
6.The dictionary, forming part of the Family Court Rules, defines “Protected Earnings Rate” as meaning the actual threshold income amount that would apply to a Payer under Part VI, Division 4(B) of the Bankruptcy Act 1966, if the Payer was bankrupt.
7. Regard must therefore add to the provisions of the Bankruptcy Act.
8.Section 139K of the Bankruptcy Act is the relevant definitions section in the Part referred to in paragraph 6 above. There, the relevant terms to be defined are the following:
a.Base income threshold amount which means, relevantly, in this case 3.5 times the amount that, at the time, is specified in column 3, Item 2, Table B, point 1064-B1, Pension Rate Calculator A, in the Social Security Act 1991.
b.Actual income threshold amount which means, relevantly, in this case, where the Respondent Husband does not have any dependants, the base income threshold amount.
9.Section 1064 of the Social Security Act 1991 sets out the Pension Rate Calculator A at its end.
10.Although there are lengthy and detailed provisions in relation to the calculation of the “actual income threshold amount” for present purposes, the calculation is quite simple as the husband has no dependents and is not seeking to claim any deductions.
11.Accordingly, the actual income threshold amount is defined in this case where the Respondent husband does not have any dependents, as the base income threshold amount.
12.The Insolvency and Trustee Service Australia website publishes the income contributions applicable in various cases. Attached and headed “Current Amounts” is a two page printout updated as at 24 October 2007 from the Australian Government Insolvency and Trustee Service Australia website. There, on page two of the printout, under the subheading “Income Contributions”, the limit (amount of tax) is set out as being $39,457.60, where the Payer has no dependents as in this case, before contributions are to be made.
13.The Respondent Husband is earning a gross amount of $779.00 per week or $40,508 annually. His total income tax is $144.00 per week. Accordingly, his net average earnings are $635.00 or $33,020 annually. These figures are taken from the Husband’s Financial Statement sworn 6 December 2007 and filed 7 December 2007. Pay Slip attached.
14.The Husband’s net annual earnings are significantly less than the Base Income Threshold Amount which are the basis for defining the Protected Earnings Rate. Accordingly, all the husband’s earnings are protected and he is not required to make any contributions from his income for the payment of any debt to the Payee, being the Applicant Wife.
15.It is respectfully submitted, therefore, on behalf of the Respondent Husband that the Court should not make an order for the garnishment of the Husband’s earnings as the protected earnings rate applicable to him exceeds the amount he is earning from his employer, the third party.”
Submissions of the wife on garnishment order
The submissions filed on behalf of the wife were as follows:
“1.Part 20.4 of the Family Law Rules is not applicable. The Respondent is subject to a garnishment order as a result of the respondents failure to comply with the Orders of this Honourable Court made on 3rd of December 2007. The Court is yet to determine a sum for the garnishment of the Respondent’s wages and therefore rules relating to a Third Party Debt Notice do not apply. The Wife is under no obligation to serve a Third Party Debt Notice given that the garnishment order and the amount to be fixed has yet to be determined by the Court.
2.The Respondent has been found to have contravened Orders of the Court. As a result, the Wife has suffered significant financial hardship. The Wife submits that Order 2 of the Orders made on the 3rd of December, 2007 be reinstated and a warrant issue for the arrest of the Husband pending full payment of the debt owed if the Husband continues to fail to make payment.
3.The Husband has the financial resources to make payment. The Husband provided documentary evidence to the court regarding his superannuation interest. Pursuant to a Financial Statement filed by the Husband on the 7th of August, 2007 the Husband had twenty five thousand dollars in LUCF and REST superannuation funds. The Husband has not disclosed any further interest in these funds in his updated financial statement. The Husband has either misled the Court by not disclosing these amounts or alternatively has withdrawn monies from his superannuation which can be provided to the Wife in satisfaction of the debt owed.
4. The Wife submits that Husband (sic) has the ability to make payment by way of a garnishment order. The Husband’s earnings ensure that he is able to maintain his lifestyle and make payment towards the debt. According to the financial statement filed the 7th of December, 2007 his fixed expenses total $308.00. His earnings are $779.00 per week therefore leaving a total disposable income of $471.00 per week. The Husband has not provided annual taxation returns to the Court. The Wife submits that during the marriage the Husband also received payment from overtime work at the
E Hospital which is not disclosed in his financial statement. The Husband has adequate disposable income to pay a fixed sum per week toward the amount owed to the Wife and pursuant to his obligation to the Court and his income is capable of being the subject of a garnishment order.5. The Husband on page 13 of his financial statement filed the 7th of December, 2007 states that he has a partner and “I often purchase food and pay for children’s activities whilst with Ms H.” This suggests the Husband has additional funds at his disposal.
6.The Husband has failed to provide details as to what action he has taken to try and make payment of his obligation pursuant to the Court Order. The Husband has attended each Court event and simply failed to make any payment which has caused significant financial hardship to the Wife. The Wife requests that the Honourable Court consider a garnishment of the Husband’s wages as deemed appropriate or alternatively Order 2 of the Orders made on the 3rd of December, 2007 be reinstated and a warrant issue for the Husband’s arrest pending payment of the amount owing to the Wife.”
Submissions in reply by the husband
Against the background of the Christmas/New Year break and on the request of the husband’s solicitors (who advised they had not received the wife’s submissions till the New Year) the husband’s solicitors were able to file submissions in reply on 8 February 2008 as follows:
“1.The husband is not yet subject to a Garnishment Order. This matter is before the Court pursuant to the Wife’s application filed 10 September 2007 seeking orders, inter alia, that a Garnishment order be made requiring the Husband’s employer to pay to the wife such weekly or monthly sum as deemed appropriate by this Honourable Court. In neither her application, nor her submissions filed 20 December 2007, has the wife set out the basis upon which a Garnishment Order can be made, specified the applicable Family Law Rules, nor the basis of calculating the amount to be fixed pursuant to any Garnishment Order.
2.It is the Husband’s submission that the wife is under an obligation to serve a Third Party debt Notice. As described at page 516 of the Australian Master Family Law Guide, a Garnishee Order (or Garnishment Order as it has been termed in the Wife’s application), also known in other jurisdictions as an Attachment of Earnings Order is equivalent to a Third Party Debt Notice in Family law proceedings. Any order for garnishment made in this case by the court will be directed towards the Husband’s employer.
3.There is no support for the wife’s proposition that the Court must first make a “Garnishment Order” and subsequently determine an amount to be garnished. The procedure for the making of a Garnishment Order or a Third Party Debt Notice is set out at pages 516 to 517 of the Australian Master Family Law Guide and by the Family Law Rules where indicated in the Husband’s submissions filed 17 December 2007.
4.Paragraph 2 of the Wife’s submissions is, with all due respect, entirely irrelevant and worst, argumentative, It in no way assists the Court to make a determination in respect of the Wife’s application for a Garnishment Order. In her application, the Wife does not seek the type of relief set out at paragraph 2 of her Submissions. Further, and in any event, the Husband submits that it is entirely inappropriate for him to be imprisoned as a result of him being unable to comply with one in circumstances where he is able to do so. It is the Husband’s understanding that the Court has already dealt with this aspect of the matter in any event.
5.At paragraph 3 of her submissions, the wife makes reference to the Husband’s superannuation. The Court has not made any orders in respect of the superannuation of the parties nor has it been asked to do so. The orders made in respect of property settlement, by consent, took into account each of the parties’ property and financial resources. The Wife’s present application is for garnishment of the husband’s earnings. It has nothing to do with his superannuation benefits. The Husband is not required to disclose his superannuation entitlements in respect of a garnishment application. It is submitted that the wife’s submission at paragraph 3 is of no assistance to the court, not relevant to her application and argumentative.
6.Paragraph 4 of the Wife’s submission is entirely irrelevant if the Court finds that the Family Law Rules relied upon by the husband apply. The husband submits that they do apply. Further, the wife seeks to give evidence in this matter by way of submissions and much of the submission contained at paragraph 4 is not only irrelevant but argumentative and not supported by the evidence, The husband’s financial statement does not reveal that he has a disposable income of $4771 per week and it is noted that the term “disposable income’ is not in any way defined by the wife. It is the Husband’s submission that the protected earning rate is to be calculated pursuant to the Family Law Rules identified by the husband, the operation of which are explained at page 516 to 517 of the Australian Master Family Law Guide.
7.Paragraph 5 of the wife’s submissions is irrelevant.
8. Paragraph 6 of the wife’s submissions is irrelevant. Further, at paragraph 6 of her submission. The wife identifies that the husband has a further liability in respect of unpaid legal costs resulting, almost exclusively, from the wife’s actions continuously bringing this matter before the court. It is disingenuous for the wife to seek to criticize the husband for attending Court in response to applications she has brought, including applications seeking orders which could result in the husband’s loss of liberty, particularly if he failed to attend.
9.It is submitted on behalf of the husband that the wife’s submissions in reply are irrelevant, do not assist the Court and contrary to the property and orderly resolution of this matter.”
Consideration
In Iverson (No.2) at paragraph 69 the Court as currently constituted said:
“69.The contravention application was filed in circumstances where the husband had failed to comply with the Orders.
70.In this case there is a finding that the husband’s contravention of the Orders was due to his failure to deliver the car in good order to the wife.
71.In addition to the provisions set out in section 112AD(4) of the Act, the Rules also provide the means for enforcing obligations by a garnishment order.
72.There was sufficient evidence to indicate the husband evaded his obligations under the Orders. As a result the wife has not had the benefit of the Orders and has had to bring proceedings to get the husband to do what he should have done in November 2006.
73.Whilst there was evidence the husband was working at F Pty Ltd. Ltd. there was no evidence he was employed by or receiving remuneration from F Pty Ltd.
74.As was made clear at paragraph [78] of the decision of
4 May 2007there was differing evidence regarding the value of the car.
75.The wife made no specific written submissions regarding the value of the car and the terms of any garnishment order necessary to ensure compliance with the Orders.
76.As set out above the husband submitted that the wife should be required to return the car to him so he could then compensate the wife for her inability to sell the car for its value.
77.However, section 112AD(4) provides that the Court make such orders as it considers necessary to ensure compliance with the order that was contravened.
78.In this case the husband was found to have contravened the Orders. The husband failed to deliver the car in good order. In those circumstances I am not satisfied that it would be appropriate to order that the car be returned to him so he could pay the wife the value of the car in good order. In coming to that conclusion I have had regard to the wife’s evidence that the husband said he would kill himself before he gave her the car.
79.However, as the husband pointed out in submissions the only evidence regarding the value of the car was $15,000.00 figure he gave in evidence. There was no evidence regarding the value of the car when it was delivered to the wife in November 2006 and there were no written submissions from the wife on this issue.
80.As there are no valuations of the car in its current condition before me, at this stage, I am not prepared to make an order garnishing the husband’s wages when the sum owing to the wife by virtue of the husband’s contravention has not been satisfactorily determined.
81.Such an outcome in this case would clearly be unsatisfactory given the husband’s conduct. The contravention was found in circumstances where the husband’s conduct rendered nugatory the order requiring the car to be delivered to the wife.
82.On what is before me it seems the practical solution would be to place the wife in the position she should have been in had the Orders been complied with.
83.Accordingly, I will order that the husband pay the wife’s reasonable costs of returning the car to her in good order which it should have been as per the Orders (less the value of the car as delivered).”
Given the history of this matter and the husband’s claimed impecuniosity the merit of the rejection of the submission in paragraph 76 above has only been reinforced.
As was established at the hearing on 3 December 2007 the “reasonable costs” referred to in the above paragraph at 83 have been determined.
The quotation from C Automotive (which was the lower of the two quotations the wife was ordered to obtain in Iverson (No.2)) annexed to the Wife’s affidavit filed 10 September 2007 results in those costs, on the most favourable calculation to the Husband, being $36,000.00.The husband had been given liberty to apply pursuant to order 5 of the orders of June 2007 in Iverson (No.2) to dispute the meaning of good order but did not do so. He had, as set out earlier, the opportunity to take issue with the November 2006 orders, the orders in Iverson (No.1) and Iverson (No.2) but had not done so. He provided no material capable of countering the wife’s quotations before or since.
As is clear from the above these proceedings concern orders necessary to ensure compliance with the November 2006 orders that the Husband was found to have contravened in the decision of May 2007.
The provisions of Order 33 of the Family Law Rules which are included in Rule 25B.05 and Schedule 5 of the Federal Magistrates’ Court Rules 2001 are the applicable rules not Part 20.4 of the Family Law Rules. The provisions of order 33 include that:
“(5)An obligation may be enforced by one or more of the following means:
(a) garnishment;
(b) seizure and sale of personal property;
(c) sequestration of estate;
(d) sale of real property.”
There is nothing to indicate that these methods of enforcement exclude any of the other possible means and the use of the words “one or more” reinforces that conclusion. However, though importantly for present purposes, these provisions also indicate:
“(9)Where the court makes a garnishment order attaching the earnings of the respondent, it shall:
(a)specify the periodic amount to be deducted from the respondent’s earnings in satisfaction of the monies payable, that is to say, the normal deduction rate;
(b)specify an amount fixed by the court as the amount below which the respondent’s earnings shall not be reduced by compliance with the order, that is to say, the protected earnings rate;
(c)specify the person to whom, the place at which and the manner in which payment of amounts to be paid by the garnishee under the order is to be made;
(d)specify the amount that the garnishee may deduct from the normal deduction rate referred to in paragraph (a) for administrative expenses; and
(e)specify the date from which the payments shall commence.”
In my view the submissions of both parties on the issue of the garnishment order failed to engage with the relevant rules. In any event and in the context of this matter, in my view the precise provisions of the Rules do not matter. Section 105 of the Family Law Act 1975 (“the Act”) says that all decrees made under the Act may be enforced by a Court having jurisdiction under the Act. The proceedings before the Court involve orders made by a Court having jurisdiction under the Act. Subject to what follows in my view the circumstances in this case would warrant the Court exercising its discretion to enforce the orders.
I also reject the implication in that the husband’s submission that he was not required to file a Form 13 which made full disclosure of his financial position. However, leaving those matters to one side on what is before me the husband would appear to be earning below the protected earnings rate.
Given the provisions of s.105 of the Act and Order 33 of the Rules it seems that whilst on the evidence before the Court the husband’s earnings fall below the protected earnings rate for the purposes of a garnishment order there is no barrier to the wife making application in accordance with the Rules for the seizure and sale of identifiable items the husband’s property to satisfy the previous orders.
There is also of course the matter that those orders constitute a judgment debt. In those circumstances and given the Court has the power under the Act to make a sequestration order the Court would be assisted in considering what orders are necessary to enforce the orders of November 2006 if there were submissions from the parties on whether such an order should be made. As I understand the husband’s position there is a debt which he says he cannot pay, his income is such that a garnishment order will not be made and there is no evidence at this stage of other property to meet that debt.
However, on the evidence before the Court the husband is earning less than the Base Income Threshold Amount that is the basis for defining the Protected Earnings Rate for any garnishment order. Given this on what is before me it would seem the purpose of making a garnishment order may well be moot.
I repeat what was said in paragraph [81] in Iverson (No.2) :
“Such an outcome in this case would clearly be unsatisfactory given the husband’s conduct. The contravention was found in circumstances where the husband’s conduct rendered nugatory the order requiring the car to be delivered to the wife.”
The evidence in Iverson (No.1) made clear the husband had not complied with his obligations under the orders in November 2006. However at least at present it appears the avenue of a garnishment order can not be used to ensure compliance with those orders. I accept this is unsatisfactory outcome, from the wife’s point of view, as unfortunate as that is however at least in relation to the making of a garnishment order, the situation is as set out above.
Conclusion
The wife’s solicitors have filed a notice of ceasing to act and she appeared unrepresented today. Given this a transcript of these reasons will be ordered and provided to the parties.
For the reasons set out above there should be no garnishment order. The wife will need to make any further applications for enforcement in accordance with the Rules and file any submissions on whether a sequestration order ought be made against the husband within 14 days. The husband will file submissions in reply 14 days thereafter or 28 days from today’s date in the event there are no submissions received from the wife.
Finally, I note despite the husband’s solicitors and barrister advising the Court on 2 previous occasions that he would pay the fine ordered in May 2007 the husband still has not done so.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM
Associate: Rachelle Lombardo
Date: 20 March 2008
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