HUSBAND SEEKS TO RECOVER MONEY PAID BY HIS EMPLOYER TO THE WIFE
Moorcroft & Moorcroft (No.5) [2020] FCCA 2917 (28 October 2020)
This case involves the husband seeking recovery of the money paid by his employer to the wife pursuant to a Third Party Debt Notice due to the fact that there was a prior suspension order made by the court.
Facts:
The husband owed, as a debt, the sum of $130,893.04 to the wife being made up of a $10,000 costs order made by the Full Court of the Family Court of Australia, $3,734 being costs of the Applications in a Case filed by the wife and $117,159.04 expended by the wife.
The Third Party Debt Notice required B Ltd to pay the wife from the husband’s periodic income, the sum of $4,544.55 per pay, until the amount of $130,893.04 had been paid. However, due to the COVID-19 pandemic, B Ltd indicated that the husband would be stood down and his pay reduced.
Upon the husband’s applications to the court (filed 20 March 2020 and 15 April 2020), the Third Party Debt Notice order was suspended on 25 March 2020. The suspension order was made on the basis that his pay had been markedly reduced, and it was not known when his regular pay would recommence, with indications from B Ltd that staff were to use up their leave.
When the husband received his pay on 27 March 2020 for the pay period "6 March 2020 to 29 March 2020, the amount of $4,544.55 had been withheld by B Ltd and paid to the wife (pursuant to the Third Party Debt Notice).
The husband then filed an Application in a Case seeking an order that the wife refund the sum of $4,544.55, on the ground that an order had been made to suspend the operation of the Third Party Debt Notice.
The wife seeks that the application be dismissed and that she retain the sum of $4,544.55 as paid to her by B Ltd.
Issue: Should the amount that had been withheld by the employer of the husband which has been paid to the wife be returned to the husband on the ground that an order had been made to suspend the operation of the Third Party Debt Notice?
Law:
- Federal Circuit Court Rules 2001 r.16.05(2)(e)
Analysis:
The Third Party Debt Notice was originally made in order that the husband pay the debts upon which the notice was based, on the proviso that such payment did not go below the protection level of $2,982.37 and based on his then annual or normal wage.
It is apparent that an order was made which did not reflect the intention of the court, because at all times the intention of the court was to ensure the operation of the Third Party Debt Notice as long as the husband received his normal wages. For the pay period ending 29 March 2020, the husband received his normal wage.
Stated in the Federal Circuit Court Rules 2001, r.16.05(2)(e) is the power which allows a judgment or an order to be set aside if such did not reflect the intention of the court. The intention of the court was to stay and suspend the operation of the Third Party Debt Notice, in circumstances where the husband’s income had been reduced because he had been stood down.
It was not the intention of the court to relieve the husband of the debt while he was still earning his normal wage, and the pay packet the amount was deducted from has not been shown by him to be anything other than his normal wage.
Conclusion: On the basis that the order did not reflect the intention of the court, the application is hereby dismissed.