FAMILY COURT OF AUSTRALIA
| MORIARTY & MORIARTY | [2009] FamCA 369 |
| FAMILY LAW – ORDERS – ENFORCEMENT of property and spousal maintenance orders – Garnishment order – Costs on and expenses for complying with subpoena –Indemnification of issuing party relating to costs and expenses where subpoena necessary because other party in default of discovery orders – Costs generally |
| Family Law Act 1975 (Cth) |
| Deposit & Investment Co Ltd (Receivers Appointed) and Others v Peat Marwick (1996) NSWLR 267 G and D & D [2005] FamCA 1429 Lucas Industries v Hewitt (1978) 18 ALR 555 Mitchell & Co (1996) NSWLR 267 Penfold v Penfold (1980) FLC 90-800 Fuelxpress Ltd v L M Ericsson Pty Ltd (1987) 75 ALR 284 Kennedy and Evans; Trust Bank (Intervener) (1994) FLC 92-514 Relationships Australia (Qld) v M [2006] FamCA 1265 |
| APPLICANT: | Ms Moriarty |
| RESPONDENT: | Mr Moriarty |
| FILE NUMBER: | MLC | 12229 | of | 2007 |
| DATE DELIVERED: | 13 MAY 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | THE HONOURABLE JUSTICE CRONIN |
| HEARING DATE: | 5 MAY 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MS WILLIAMS |
| SOLICITOR FOR THE APPLICANT: | LANDER & ROGERS |
| COUNSEL FOR THE RESPONDENT: | MS COLLA |
| SOLICITOR FOR THE RESPONDENT: | LEANNE CAIN & ASSOCIATES |
Orders
I DECLARE that the husband owes the wife the following pursuant to orders of the Court to date including the costs of these immediate proceedings:
(a) $30,000.00 under the property orders;
(b) $4024.00 in interest;
(c) $680.00 for the costs of Mr W;
(d) $18,900.00 for spousal maintenance due to 6 May 2009; and
(e) $20,000 for the wife’s costs.
I DECLARE that as a sole trader, the husband is owed consultancy fees by A ENTERPRISES PTY LTD, and/or N GROUP PTY LTD and/or N PTY LTD.
IT IS ORDERED that each of the entities referred to in paragraph 2 of these orders collectively pay to the wife the sum of $1,200 per week for so long as they remain indebted to the husband until the discharge of the total referred to in paragraph 1 hereof.
IT IS FURTHER ORDERED that if the husband is paid a lump sum for any accrued benefits attributable to his work as an employee, contractor or consultant to the entities referred to in paragraph 2, whether by way of termination benefits or otherwise, those sums be paid in full to the wife to the extent necessary to discharge the total sum referred to in paragraph 1 hereof.
That in the event that each and/or any of the entities referred to in paragraph 2 no longer owes the husband any money, IT IS DIRECTED that they or any of them provide the wife with a written advice to that effect.
That the order made on 23 April 2009 that the wife pay the costs of LEANNE CAIN & ASSOCIATES fixed in the sum of $400 be discharged.
That the entities referred to in paragraph 2 hereof have liberty to apply on appropriate application in the event that they or any of them require orders relating to the implementation…
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- Moriarty & Moriarty [2009] FamCA 369
- Case
- [2009] FamCA 369
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CaseChat Overview and Summary
The primary legal issues before the Court were the total amount owed by the husband to the wife under various heads, including property orders, interest, and spousal maintenance, as well as the wife's costs. A further issue was how to secure payment of these sums, given the husband's status as a sole trader and his entitlement to consultancy fees from associated companies.
Justice Cronin reasoned that the husband owed the wife a total of $30,000.00 under property orders, $4,024.00 in interest, $680.00 for the costs of Mr W, $18,900.00 for spousal maintenance, and $20,000.00 for the wife's costs, totalling $73,604.00. To ensure payment, the Court declared that the husband was owed consultancy fees by A ENTERPRISES PTY LTD, N GROUP PTY LTD, and N PTY LTD. The Court ordered these entities to collectively pay the wife $1,200 per week until the total debt was discharged. Additionally, any lump sum payments received by the husband from these entities for accrued benefits were to be paid directly to the wife to satisfy the outstanding debt. The Court also discharged a previous order requiring the wife to pay costs to LEANNE CAIN & ASSOCIATES.
Orders
Orders of the court
1.
I DECLARE that the husband owes the wife the following pursuant to orders of the Court to date including the costs of these immediate proceedings:
(a) $30,000.00 under the property orders;
(b) $4024.00 in interest;
(c) $680.00 for the costs of Mr W;
(d) $18,900.00 for spousal maintenance due to 6 May 2009; and
(e) $20,000 for the wife’s costs.
2.
I DECLARE that as a sole trader, the husband is owed consultancy fees by A ENTERPRISES PTY LTD, and/or N GROUP PTY LTD and/or N PTY LTD.
3.
IT IS ORDERED that each of the entities referred to in paragraph 2 of these orders collectively pay to the wife the sum of $1,200 per week for so long as they remain indebted to the husband until the discharge of the total referred to in paragraph 1 hereof.
4.
IT IS FURTHER ORDERED that if the husband is paid a lump sum for any accrued benefits attributable to his work as an employee, contractor or consultant to the entities referred to in paragraph 2, whether by way of termination benefits or otherwise, those sums be paid in full to the wife to the extent necessary to discharge the total sum referred to in paragraph 1 hereof.
5.
That in the event that each and/or any of the entities referred to in paragraph 2 no longer owes the husband any money, IT IS DIRECTED that they or any of them provide the wife with a written advice to that effect.
6.
That the order made on 23 April 2009 that the wife pay the costs of LEANNE CAIN & ASSOCIATES fixed in the sum of $400 be discharged.
7.
That the entities referred to in paragraph 2 hereof have liberty to apply on appropriate application in the event that they or any of them require orders relating to the implementation of paragraphs 3 and 4 of these orders.
8.
IT IS CERTIFIED that in the circumstances, it was appropriate to brief counsel to appear for the parties.
9.
That all outstanding applications be otherwise dismissed and all proceedings be removed from the list of cases awaiting a hearing.
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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