PANDOLOUS & PANDOLOUS

[2009] FamCA 1229

FAMILY COURT OF AUSTRALIA

PANDOLOUS & PANDOLOUS [2009] FamCA 1229

FAMILY LAW – ENFORCEMENT OF ORDERS – leave granted to the wife to issue a Third Party Debt Notice to the husband’s employers

FAMILY LAW – COSTS – where the proceedings are for the enforcement of court orders – where the husband was wholly unsuccessful – financial circumstances of the parties – husband to pay the wife’s costs of and incidental to the application

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) Chapter 20

APPLICANT: Ms Pandolous

RESPONDENT: Mr Pandalous

FILE NUMBER: ADC 3212 of 2008

DATE DELIVERED: 26 November 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 26 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D.J. Childs

SOLICITOR FOR THE APPLICANT: Robinson & Mason

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: In Person

Orders

1. Leave is granted to the wife to issue a Third Party Debt Notice to the husband’s employers correctly named for the sum of TWENTY NINE THOUSAND TWO HUNDRED AND THIRTY TWO DOLLARS AND FORTY-FIVE CENTS  [$29,232.45].

2. The husband pay the wife’s costs of and incidental to the Application in a Case filed on 28 August 2009 such costs to be agreed or as taxed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3212 of 2008

MS PANDOLOUS

Applicant

And

MR PANDALOUS

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I am being asked to make a Third Party Debt Notice and orders in relation to that this morning.  I have previously heard the application in relation to the enforcement of an order for costs which has been made in relation to the long running proceedings.  The application in relation to the issue of the Third Party Debt Notice is an application to enforce an order of this Court for the payment of a sum of money. 

2. I am satisfied that the orders of the Court have previously been calculated appropriately.  One figure relates to the ongoing costs of the wife, which I have deleted.

3. This, therefore, becomes an application to enforce an order of this Court.  It is clear that the orders have been made and calculations have been made following other orders of the Court for the payment of costs.  The only matters which have not been the subject of a previous order, other than item three in the schedule which I have already deducted, is the question of counsel fees for attendance upon the applications to enforce the Court orders.

4. I am satisfied that it is appropriate to make an order for those counsel fees, taking into account the provisions of section 117(2) and (2A) in particular. It is also appropriate to allocate costs in items five and six as being part of the order for payment due by the former husband.

5. I therefore order that the total amount now due by the husband to the wife is the sum of $29,232.45.  That sum takes into account all of the items on the schedule to the third party notice handed up to me today save and except item number three.

6. It also takes into account the amounts paid pursuant to other collection processes of $1,184.92 referred to in page two.

7. The wife is entitled to enforce an obligation to pay money due by the husband in the sum of $29,232.45.  The wife is entitled to enforce that obligation against the current employers of the husband.

8. Such enforcement should go to the extent of 20 percent of any payment due by the employer to the husband, whether by way of salary earnings or commissions.  Any amount payable to the husband is reduced by an amount of 20 percent which should be paid by the employer to the wife in accordance with the Third Party Debt Notice. 

9. I therefore give permission for the wife’s solicitor’s to issue the Third Party Debt Notice to the husband’s employers, but on the condition that the form be completed indicating that in Part D the words:

   “Seven days after you are served with this notice, you must deduct from the respondent’s (payer’s) earnings and commission each pay day an amount of 20%, calculated as follows:

   Amount  $20% of payments due to respondent

   Less administrative expenses         $5.00

   =         Amount Deducted

   (Then the correct figure needs to be inserted in that part D, being the figure of $29,232.45).

10. I note that the notation to the Third Party Debt Notice specifically tells the third party debtor that they must not unfairly treat a payer in respect of employment because of an order made under Chapter 20 of the Family Law Rules 2004 (Cth).

11. In making my decision to permit the issue of the Third Party Debt Notice, I have taken into account the husband’s submissions, in particular in relation to his financial circumstances and possible embarrassment that might be caused to him.  Nonetheless, the orders of the Court have been made and there is no material which has been put before me which would suggest that they should not be enforced in an appropriate way.

12. I take into account both the financial circumstances as disclosed by the husband and the wife and that the proceedings are for enforcement of an order of the Court.  This is the most significant factor.  The husband has been wholly unsuccessful in these proceedings.  Balancing all of the factors, I make an order that the husband pay the wife’s costs of and incidental to the application in a case filed on 28 August 2009;  such costs to be agreed or as taxed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  14 December 2009