FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GAINES & GAINES | [2011] FMCAfam 485 |
| FAMILY LAW – Multiple wilful and obstinate contraventions of property orders – blatant disregard for court orders – disrespect for authority of the court – course of conduct designed to ensure orders are undermined and wife does not receive her percentage of property – imprisonment. |
| Family Law Act 1975, Part XIIIAA, ss.112AD, 112 AF, 112AE |
| In the Marriage of Sahari (1976) FLC 90-086 In the Marriage of Ibbotsen and Wincen (1994) FLC 92-469 In the Marriage of Tate and Tate [2003] FamCA 112 (13 February 2003) In the Marriage of Schwarzkopff (1992) FLC 92-303 W & W [2004] FMCAfam 361 B & W(No.1) [2003] FMCAfam 101 Cummings & Cummings [1976] FLC 90-100 G & G [1981] FLC 91-042 |
| Applicant: | MS GAINES |
| Respondent: | MR GAINES |
| File Number: | CSC 609 of 2007 |
| Judgment of: | Willis FM |
| Hearing dates: | 20 & 21 April 2011 |
| Date of Last Submission: | 21 April 2011 |
| Delivered at: | Cairns |
| Delivered on: | 21 April 2011 |
REPRESENTATION
| Counsel for the Applicant: | Miss Sinclair Solicitor |
| Solicitors for the Applicant: | AMR Legal |
| Counsel for the Respondent: | Mr Trevino of Counsel |
| Solicitors for the Respondent: | Marino Moller |
ORDERS
Variation to Orders of 16 April 2009
By way of variation of the Orders of April 16 2009 and NOTING the findings of the Contravention Application delivered on 12 April 2011 wherein the Husband was found to have contravened Orders 6, 14, 16, 17, 18 19, and the following Orders now apply and replace the Orders of 16 April 2009.
The Husband is to pay the Wife:
(a)$69,211.91 and;
(b)an amount of interest calculated pursuant to section 117B of the Family Law Act 1975 as amended; and
(c)The wife’s costs of and incidental to this application to be agreed or taxed.
That within 7 days of the date of this order the husband transfer to the wife the Toyota Hilux vehicle registered number [omitted] and that such transfer be at the sole expense of the husband.
That within 7 days of the date of this order the husband transfer to the wife the “tinny” boat and outboard motor at the sole expense of the husband.
That the husband is to continue to be solely liable for and solely responsible for the payment of the parties joint personal loan with the Commonwealth Bank in accordance with the terms of the loan (or any subsequent agreement entered into), the personal loan being Account [omitted] (standing in the sum of approximately $17,238.62 at the date of trial) held with the Commonwealth Bank [branch omitted] and to that end:
(a)The husband will forthwith do all acts and things necessary to transfer the balance of the said loan to his sole name;
(b)The husband will indemnify the wife in relation to the said loan and under the terms of any personal covenant therein contained for the repayment of the said loan. The husband further agrees that should he default in making any payment or payments pursuant to…
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- GAINES and GAINES [2011] FMCAfam 485
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- [2011] FMCAfam 485
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CaseChat Overview and Summary
The court ruled that the husband was to pay the wife a lump sum of $69,211.91 plus interest calculated under section 117B of the Family Law Act 1975. Additionally, the husband was required to transfer specific assets, including a Toyota Hilux vehicle and a tinny boat, to the wife within a specified timeframe. The court also ordered the husband to assume sole responsibility for a joint personal loan and to provide evidence of compliance with these obligations. Furthermore, the husband had to cooperate with requests from the wife to redeem or transfer his interests in superannuation funds to satisfy the debt owed to her. If the debt remained unpaid after these transfers, a garnishment order was to be issued against the husband's income. The husband was further directed to keep the wife informed of any new income or assets acquired post-April 2011 and to provide regular financial statements. In the event of non-compliance, the husband faced imprisonment for four months, unless he paid the stipulated amount to the wife by a specific deadline. The court also noted that the husband had provided undertakings not to leave Australia or obtain a passport without notifying the wife.
Orders
Orders of the court
Variation to Orders of 16 April 2009
1.
By way of variation of the Orders of April 16 2009 and NOTING the findings of the Contravention Application delivered on 12 April 2011 wherein the Husband was found to have contravened Orders 6, 14, 16, 17, 18 19, and the following Orders now apply and replace the Orders of 16 April 2009.
2.
The Husband is to pay the Wife:
(a) $69,211.91 and;
(b) an amount of interest calculated pursuant to section 117B of the Family Law Act 1975 as amended; and
(c) The wife’s costs of and incidental to this application to be agreed or taxed.
3.
That within 7 days of the date of this order the husband transfer to the wife the Toyota Hilux vehicle registered number [omitted] and that such transfer be at the sole expense of the husband.
4.
That within 7 days of the date of this order the husband transfer to the wife the “tinny” boat and outboard motor at the sole expense of the husband.
5.
That the husband is to continue to be solely liable for and solely responsible for the payment of the parties joint personal loan with the Commonwealth Bank in accordance with the terms of the loan (or any subsequent agreement entered into), the personal loan being Account [omitted] (standing in the sum of approximately $17,238.62 at the date of trial) held with the Commonwealth Bank [branch omitted] and to that end:
(a) The husband will forthwith do all acts and things necessary to transfer the balance of the said loan to his sole name;
(b) The husband will indemnify the wife in relation to the said loan and under the terms of any personal covenant therein contained for the repayment of the said loan. The husband further agrees that should he default in making any payment or payments pursuant to the said loan whereby the wife is called upon to make such payment or payments then she will be entitled to recover any such payment or payments from the husband together with any interest on any such payments made, such interest to accrue until the date of repayment by the husband;
(c) The husband will provide the wife with evidence of his compliance or attempted compliance with paragraph 5(a) herein.
6.
That the husband do all things as and when requested to do so by the wife (and without delay) to co-operate with any request from the Wife to redeem any value of the [A] policy currently held in his name (assuming it has some value) and the Husband is to provide to the Wife’s solicitors FORTHWITH, written evidence from [A] as to the amount of such redemption or payout figure. The Husband is to provide any and all authorities to the Wife’s solicitor as requested by the wife or her solicitor from time to time and any authorities [A] require to be signed, to enable the Wife to make any requests for and receive information of whatsoever kind in relation to the husband’s interest in this Fund (or any other funds held by the husband with any other institution or any funds in which the husband holds a legal or equitable interest either in his own name or anyone else’s name) and to enable the Wife to deal directly with the [A] Superannuation fund (or such other funds as referred to herein). Any funds able to be redeemed is to be deducted from the amount owing as referred to in these Orders.
7.
The husband do all acts and things to co-operate with any request from the Wife to transfer the whole of his interest in the [J] Pty Ltd Superannuation Fund (or such amount necessary to satisfy the amount owing by the husband pursuant to these Orders) and the husband is to co-operate in all manner possible to effect either a single splitting Order or more than one splitting Order as and when requested to do so by the Wife and agreed to by the Trustee, at the sole expense of the Husband, in order to satisfy payment of the amount owing by the husband. The terms of the splitting Order are set out in Order 9 herein.
8.
The Orders below in relation to superannuation have effect from the operative time.
9.
That in accordance with paragraph 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the husband’s interest in the [J] Pty Ltd superannuation fund, the wife is entitled to a base amount of the whole of the husband’s interest and there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders:
(a) That, having been accorded procedural fairness in relation to the making of this order, this order binds the Trustee of the superannuation fund;
(b) That operative time for this order is four (4) business days after the date of service of the orders on the trustee of the superannuation fund.
(c) That in accordance with paragraph 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the husband’s interest in the [A] superannuation fund, the wife is entitled to a base amount of the whole of the husband’s interest and there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders;
(d) That, having been accorded procedural fairness in relation to the making of this order, this order binds the Trustee of the superannuation fund;
(e) That operative time for this order is four (4) business days after the date of service of the orders on the trustee of the superannuation fund.
10.
The sum that remains owing to the wife pursuant to these Orders, after deducting the proceeds of any transfer of any funds or after the application of any splitting Order in relation to Superannuation as provided for in these Orders is a debt owing by the husband to the wife pursuant to these Orders. To effect payment to the wife of the sum remaining to be paid by the husband to the wife, a garnishment Order is to issue in relation to the amount which remains unpaid.
11.
The Husband is to do all acts and things forthwith to effect a garnishment Order from his current employer within seven (7) days of the 16 June 2011 or seven days of commencing any new employment (such definition to include any business or venture of any kind whatsoever in which the Husband may work or have any employment arrangement or income earning arrangement of any kind whatsoever from time to time). The garnishment Order is to remain in place until such time as the amount owing by the husband to the wife, as referred to in these Orders, is paid in full. The amount of any garnishment Order is to be no less than $2,000.00 per month from the husband’s salary or wages (or such lesser amount from a fortnightly or weekly salary so as to total $2,000.00 per month). The Court NOTES in making this Order that the husband’s current salary is $70,536.00 per annum plus superannuation as at the date of this Order. A sealed copy of the garnishment order is to be served on the husband’s employer (now or in the future), the garnishee company currently being [J] Pty Limited. The Wife has liberty to apply to the Court, from time to time, if she becomes of aware of any change to the Husband’s income that would warrant an alteration to this amount and the husband is at liberty to apply in relation to the monthly amount to be deducted from his salary if he is earning significantly less than his current salary.
12.
The husband is to keep the wife informed by way of affidavit, of all sources of all assets acquired after 21 April 2011 and income derived from any source (including but not limited to an inheritance, other windfall or bonus), the identity and full details of each and every employer (or other person or institution from whom the husband receives a distribution of money, or business or business venture of his own or in which he has an interest, either legal or equitable and from which he generates, receives or derives an income), currently or in the future, until such time the Orders are complied with, no less than each six months and the Husband is to advise the Wife in writing within
24 hours of any change in his employment or income.
13.
The Husband forthwith and today provide to the Wife copies of all bank statements and credit card statements for any bank accounts in any financial institution held by himself or any account in which he has an interest (including with his current girlfriend) either legal or beneficial in his own name or with any other person each 30 days, until the amount owing by the husband is paid in full pursuant to these Orders.
14.
In the event that the Husband fails to sign any document necessary to effect the transfers or sale contemplated in these Orders and necessary to give effect to these Orders, the Registrar of the Federal Magistrates Court is authorised to sign any such document upon evidence of a failure to do so by the Husband. An affidavit of the Wife deposing to such failing will be sufficient evidence of such failure.
15.
Liberty to apply is granted to each of the parties in relation to any further orders required in relation to the machinery provisions of this Order necessary to enforce the provisions of this Order.
16.
A copy of the transcript of the hearing of 23 May 2011 is to be placed on the file.
ORDER 2
17.
MR GAINES (“the Husband”) is to serve a term of imprisonment for four (4) months to commence after 4:00 pm on 20 June 2011 unless the husband pays the sum of money as set out below, to the wife, on or before 20 June 2011 at 4:00 pm.
The sum to be paid by the husband to the wife is the total of:
(a) $69,211.91; and
(b) An amount of interest calculated pursuant to section 117B of the Family Law Act 1975 as payable as at 20 June 2011 fixed (and agreed) at the sum of $14,379.00.
18.
A Warrant of Commitment is to issue upon the notification to the Court by the Wife that the Husband has failed to comply with the payment referred to in Order 1 herein.
NOTATION:
A. The Court NOTES that the Husband today provided Undertakings on oath in relation to his to his not obtaining a passport and or leaving Queensland and or the Commonwealth of Australia prior to imprisonment.
B. The Husband has also Undertaken to notify the Wife and give her prior notice if he intends to apply either for a passport or relocate from Cairns at any time in the future until these Orders are complied with.
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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