GAINES and GAINES - [2011] FMCAfam 485

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 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.
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.
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.
The Orders below in relation to superannuation have effect from the operative time.
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.
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.
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.
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.
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.
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.
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.
A copy of the transcript of the hearing of 23 May 2011 is to be placed on the file.

ORDER 2

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.
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.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CAIRNS

CSC 609 of 2007

MS GAINES

Applicant

And

MR GAINES

Respondent

REASONS FOR JUDGMENT

On 12 April 2011, I delivered my reasons in relation to this matter which dealt with contravention proceedings involving nine separate contraventions arising out of the husband’s failure to comply with orders of this Court that I made on 16 April 2009. I made findings that the husband was guilty of contravening orders, without a reasonable excuse, in relation to counts 3, 5, 7, 8, 9 and 10 of the amended application for contravention filed on 16 April 2010.
Having handed down those findings, this application is now in relation to the sanctions to be imposed as a result of the husband’s contraventions. An application for costs has also been made, and I have dealt with that. There is also an application to vary the orders of 16 April 2009, and that request is made by the wife. I will come to that matter shortly.
Turning first to the issue of contraventions and the appropriate sanction, the legislation sets out that sanctions for failure to comply with orders that do not relate to children are found in division 2 of Part XIIIAA of the Family Law Act 1975.
Section 112AD(1) provides that:
If a court having jurisdiction under this Act is satisfied that a person has, without reasonable excuse, contravened an order under this Act, the court may make an order for the imposing, in respect of the person, of one or more of the sanctions available to be imposed under subsection (2), being a sanction or sanctions that the court considers to be the most appropriate in the circumstances.
Section 112AD(2) provides that the sanctions that the Court may impose are:
(a) to require the person to enter into a bond in accordance with section 112AF; or
(b) to impose a sentence by order on the person, or make an order directed to the person, in accordance with section 112AG; or
(c) to fine the person not more than 60 penalty units; or
(d) subject to subsection (2A), to impose a sentence of imprisonment on the person in accordance with section 112AE.
Section 112AD(3) provides that:
An order under subsection (1) may be expressed to take effect immediately, or at the end of a specified period or on the occurrence of a specified event.
When a court makes an order under subsection (1), the court may make such other orders as this court considers necessary to ensure compliance with the order that was contravened.
In regard to the sentences of imprisonment imposed section 112AE(1) provides that:
Any sentence imposed shall be expressed to be for a period of 12 months or less, for a period ending when the person complies with the order concerned or (ii) has been imprisoned pursuant to the sentence for 12 months or such lesser period as is specified by the court, whichever happens first.
I note also the provisions of section 112AE(2). It states that:
A court shall not sentence a person to imprisonment unless the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention pursuant to any of the other paragraphs of subsection 112AD(2).
If a sentence of imprisonment is imposed the court must states the reasons that it is satisfied that no other sanction is appropriate and cause those reasons to be entered in the records of the court.
Turning to the relevant authorities. The solicitor for the applicant, Miss Sinclair has helpfully provided me with the relevant authorities in this area of the law, including sanctions and principles of sentencing in other cases which are relevant. Mr Trevino agrees that these cases are the relevant authorities. I have had regard to those authorities, including the Full Court In the Marriage of Sahari (1976) FLC 90-086; Ibbotsen and Wincen (1994) FLC 92-469; Tate & Tate [2003] FamCA 112 (13 February 2003); Inthe Marriage of Schwarzkopff. These are Full Court decisions. I refer also to W & W [2004] a decision of Donald FM.
In W & W Donald FM had regard to a decision of Ryan FM, as she then was, in B & W (No.1) [2003] FMCAfam 101. In that matter her Honour canvassed the relevant authorities and principles including:
A sanction imposed for contravention of an order must be proportionate to the contravention. That is the sanction must be of a severity which is appropriate in all the circumstances. A court should not impose a sentence that is more severe than that which is necessary to achieve the purpose for which it is imposed. Other principles of sentencing need to be considered when determining the appropriate sanction, including the circumstances of the contravention and factors subjective to the person found to have contravened the orders. The court can consider factors such as character, age, means and physical or mental condition and conduct since the contravention has occurred, for example, contrition. Even-handedness in outcomes for comparable contraventions is important.
I have also had regard to the Full Court decision in Cummings & Cummings [1976] FLC 90-100 which lists five points to be considered in deciding whether to impose imprisonment, fine or other penalties. Those five points are:
The need to consider the parties’ future relationships and the role of counselling, the need to ensure compliance with a particular order in future, the need to protect a party from violence or interference, the need to impose a punishment appropriate to the breach and the need to uphold authority of the court to make effective orders.
In relation to the submissions that I have received in this matter the respondent’s counsel, Mr Trevino urges me to place the husband on a bond to be of good behaviour for two years. He has also made reference to an immediate release order. Mr Trevino submits that a sentence of imprisonment will likely result in the husband losing his current employment and, therefore, his ability, at least in the short term, to comply with orders for enforcement or variation of the orders so as to pay funds to the wife in addition to superannuation and the transfer of perhaps one vehicle. Similarly, if the Court chose to garnishee the husband’s wages Mr Trevino submits this would not be possible whilst the husband is in prison and without employment. Mr Trevino urges me to consider, as I have said, a good behaviour bond and other punishments such as community service.
Miss Sinclair for the wife submits that the appropriate penalty in this matter is the maximum sentence of imprisonment, 12 months. This is due to the findings of the Court that the husband has been consistently dishonest. His actions were intentional and deliberate and his conduct was designed to defeat the orders. Miss Sinclair submitted that the husband was found to have given false evidence and that there were damning credit findings against the husband. Importantly, Miss Sinclair submits that this Court made findings that the husband’s deliberate conduct has precluded the wife from receiving moneys representing her share of the property entitlement as provided in the orders of 16 April 2009. Miss Sinclair submits that the husband’s contraventions were contumacious, that the Court made such a finding and the husband has acted in a stubborn resistance and defiance of the authority of this Court. Miss Sinclair submits that the husband has shown no contrition and his deliberate actions have made a mockery of this Court.
In my considerations I have, as urged upon me by Mr Trevino for the father, and as I am required to do, considered the options other than imprisonment and in doing so I mindful of the findings of fact made in these proceedings as set out in the judgment. I accept the submissions that are made on behalf of the wife. The husband embarked upon a course of conduct designed to ensure that the wife received nothing from her property settlement. He did this deliberately and the judgment contains findings that the husband’s conduct was sustained, deliberate and designed to ensure that the wife received nothing.
The husband at no stage intended or endeavoured to satisfy his obligations under the orders made. He decided he wasn’t paying out the wife. He let the business debts accrue. He spent funds at his discretion while waiting for the 60 day period to pass in which he was given an opportunity to retain his livelihood and the business and then suddenly, and without any valid reason, shut down the business. In doing so he sabotaged the opportunity given to him in the orders to either pay out the wife or sell the business as a going concern.

His decision to take up work with a former client was done in circumstances which were all by design and led to the deliberate closure of the business. He failed to maintain business records. He rebuked all efforts of the wife to enlist his assistance in preparing the business for sale and he set out to ensure that there was nothing left to sale; disconnecting phones and faxes, putting off staff on the spot, deregistering the business.
The husband chose to let the business collapse. Indeed, he caused the business to collapse. The husband’s attitude to complying with orders is referred to in the judgment. He told the wife, after the property decision was handed down, that she should go back and tell the magistrate it wasn’t a fair decision, that she got it wrong. He told the wife, “If you think I am going to keep working for you, you are dreaming.” He told the wife straight out he would just shut up shop. When the wife asked about her payment pursuant to the orders, the husband said, “You have got to be kidding. You can have nothing.” He told her she should rack off and walk away.
I am asked now to consider that the husband has the parties’ son living with him who is in grade 11. When contemplating a sentence of imprisonment I note now that the wife, who has previously been living in Townsville, has returned to live in Cairns just recently. The wife asked the husband to consider the children in June 2009 when she was urging her husband to continue to trade. The husband’s reply then showed absolute disregard for his wife and his children in what turned out to be typical of the husband’s arrogant disregard of his obligations. He told the wife, “Too bad, so sad” and that it was her fault for pushing the envelope.
The husband made no effort at all to pay the wife her property entitlement, even when he started earning over $70,000.00 per annum and in addition to that was receiving $11,000 car allowance whilst retaining one of the company cars. He has still failed to pay the wife even one dollar. He kept funds paid into the business after it shut down, funds of around $20,000. Instead of paying any money at all to the wife he has commenced paying his girlfriend’s mortgage and he has paid thousands of dollars into her account. He claimed that he has done improvements to her house. He has claimed, interestingly on oath, that he has no legal or equitable interest in that house and that he is just paying board. This is a house which he is the sole person paying the mortgage and which he admits he undertakes improvements.
The husband has disbursed the few remaining assets of the business leaving only aged cars and junk from a shed. He has deregistered the business. He has kept his earnings and the money paid by creditors. His conduct in response to the wife instigating proceedings was to trivialise her resorting to litigation, suggesting he was ready to sell what was left of the business any time, but she had not asked and instead she just started these proceedings. The husband has shown profound disrespect for the wife and the Court by giving evidence which was found to be overwhelmingly untruthful. He generated false documents to try and convince the wife and the Court that the business had bad debts which, in fact, did not exist.
The husband’s exchanges with Miss Sinclair for the wife, as recorded in the judgment, show the husband’s willingness to engage in dishonest conduct even in the Court processes of producing documents called for. The husband sustained his denials of any wrongdoing from the time the mother filed her initial contravention in late 2009 right to the end of the final day’s hearing in 2010. He made no attempt to comply with the orders at any time before, during or after the contravention hearing was instigated. To say that the husband has acted in flagrant disregard of the orders in this matter is somewhat of an understatement.
Having regard to the findings in the contravention hearing, some of which I have referred to in these reasons, I find that placing the husband on a bond to be of good behaviour to be a wholly inadequate and ineffective sanction. Similarly, I find that ordering the husband to go on immediate release order or an intensive correctional order or to perform community service or pay a fine to be wholly inadequate sanctions considering all of the findings, his dishonesty, his deliberate course of conduct and his total disrespect for the orders of this Court. As I have said, he has set out to deprive the wife of her property entitlement. There is no matrimonial home or other significant asset that can be transferred to the wife to satisfy the husband’s obligations.
The husband’s desire to deprive the wife of her property settlement involved dismantling their significant and only significant asset, the business. The business had been on foot for years. As I said in the judgment, it supported a family of four for years. He did this and he walked away to find himself an income somewhere else. The wife is left to try and sell an ageing and derelict car or an aluminium dinghy and trailer. The husband may or may not have superannuation. Hopefully, there is enough for a splitting order, but there is no evidence of that at the moment. All of these assets, at best, would not even add up to a third of what the husband owes the wife.
The husband’s contraventions have been wilful and obstintate and he has shown gross disobedience to the authority of this Court and to the orders made by this Court. Instead of making any efforts to comply with these orders, which I have urged him to do repeatedly during these prolonged proceedings and which will be seen in the transcript throughout the sitting days, the husband has simply borrowed money to pay for his legal representation in unsuccessfully contesting these contraventions. I am informed his legal bill to date is $35,000.00 to $40,000.00. There is clearly no contrition on his part.
Mr Trevino of counsel submits that the husband is of otherwise good character and that there is no evidence of any contravention prior to the contraventions in this matter. I accept that this is so. I have found that he has contravened the orders, six different orders. I note his age of 47 and that he and the wife have two children, a daughter studying [omitted] living away from home and a son in grade 11. I note the wife is now living back in Cairns. The husband’s blatant disregard for these orders is most concerning. I note that the Full Court made reference to this situation in Ibbotsen and Wincen (supra) which is referred to also by Donald FM in his case of W & W (supra), to which I have referred.
The Full Court when referring to the community’s interest that court orders are obeyed said that:
Blatant disregard of the authority of the Court and of the rule of law in our society gives rise to consternation and concern within the community generally.
In Tate & Tate in [2003] their Honours made reference to the Australian Law Reform Commission in 1987 report 35 and to chapters 13 and 14 of its report which a drew distinction between the considerations associated with non-compliance in family law and general civil law. Their Honours noted that there is a distinction and in particular:
That resistance to compliance with orders in family law litigation may be particularly strong as it was in Tate. At paragraph 623 the commission took the view that the purpose of punishment in family law proceedings was not so much upholding the Court’s authority as an end in itself, but in fulfilling the expectations of the litigants themselves that Court orders will be obeyed and imposing sanctions if this does not occur.
Their Honours stated that they agreed with that view which accords with that view expressed by Evatt CJ in G & G [1981] FLC 91-042.
Their Honours continued that at paragraph 519 the Commission said in terms that they might thought be highly relevant in the context of this case:
On the view just outlined, the need to uphold the authority of the Court, the imposition of punitive sanctions for disobedience is justifiable in terms of maintaining the effectiveness of court orders. In our society, courts are the ultimate arbiters of disputes. This system of dispute resolution depends upon, among other things, their making orders and, if necessary, enforcing them. Given that litigation can be frustrating, time consuming and costly, there would be no incentive at all in undertaking it, if there were no likelihood that the orders made by the court in settlement of a dispute could not be enforced. The imposition of coercive sanctions is clearly directed towards this goal. The imposition of punitive sanctions re-enforces it. In circumstances where enforcement is no longer relevant, either because the order has been since complied with, or is no longer capable of being complied with, the imposition of a punitive sanction vindicates the claims of the aggrieved party. It signifies the disapproval of the court, and acts as both a specific deterrent, that is, to the particular condemner, and as a general deterrent, that is to future would-be condemners. The Commission endorses the general principle that punitive sanctions should be available to the Court to the extent that they are necessary to uphold the effectiveness of the Court.
In this matter I am satisfied that the wife has been subjected to costly, time consuming litigation and delays. I have said before that the circumstances in relation to this matter are that it is no longer possible to sell the business because it no longer exists. Miss Sinclair urges upon me a sentence of imprisonment for a period of 12 months. I have contemplated the other sanctions available and, for the reasons explained, I am satisfied that there is no other sanction that is appropriate other than a sentence of imprisonment. I indicated this to the husband last night and asked him to consider his position overnight, given that he appears to be able to come up with funds continually for his legal costs and has yet to pay one dollar to the wife.
Miss Sinclair for the wife asks that the husband be given a final chance to pay the whole sum owing and that I suspend a jail sentence for a month and then Order the husband. If the husband pays the amount owing - and I pause here to say that the amount owing will be the amount of the judgment order, the interest pursuant to the rules and the costs of and incidental to these proceedings. Miss Sinclair asks that I make an order suspending the sentence to allow the husband a month to pay that sum, that is referred to as the sum in these orders, and that if the husband does so that the jail sentence remain fully suspended.
I am aware that the entirety of this time the husband has had full knowledge of the orders and I am very conscious of his course embarked upon, designed to ensure that the wife receives nothing. He now earns a comfortable living doing much the same work as he did in his own business, having let the business of [E] become defunct. These are most serious matters.
In all of the circumstances, I am satisfied that, as I have said, a jail term is appropriate and I intend to order that the husband serve a term of imprisonment. The term of imprisonment will be for four months. I consider that contraventions 5, 7 and 8 (being contraventions of Orders 14, 16, and 17 respectively) warrant a sentence of four weeks each weeks each, contraventions 3 and 10 (being contraventions of Orders 6, l9) warrant a sentence of ten days each and contravention 9 (being a contravention of Order 18) warrants a sentence of 8 days, all of these times to be served consecutively.
I have taken on board Miss Sinclair’s request that the husband have one month to satisfy the orders. I am, therefore, ordering that the term of imprisonment will commence on 21 May 2011 and it is to be suspended only on that day in the event that the husband has fully complied with all orders to pay the sum owing to the wife which I have previously identified as the sum owing pursuant to my order, the interest payable and the wife’s costs. I will order that a warrant of commitment issue upon notification from the solicitor for the wife of the husband having failed to comply with the obligations placed upon him pursuant to this order.
In relation to the variation of the orders, I intend to make a variation to the orders and I will ask Miss Sinclair to provide a draft of the Orders sought because I want this variation to be in the correct form. I am going to vary the terms of payment of the final Orders as I am satisfied that since the Orders have been made, events have transpired which make it no longer possible to implement the terms of the Orders of 16 April 2009. I intend to set aside only those orders that need to be set aside and vacated and replaced with the substitute orders, or, alternatively, add these orders, whichever is the most appropriate method of doing so noting that the variation will reflect that the husband is to pay the wife the sum of $71,461.91, which is the sum of the judgment, the amount of interest calculated pursuant to section 107 of the Family Law Act as amended and the relevant regulations and the wife costs of and incidental to these proceedings including the proceedings today. Such costs to be agreed and taxed.
In order to effect that payment I will make orders that within seven days of the date herein the husband sign all documents necessary to transfer to the wife the Hilux vehicle registered number [omitted] at the sole expense of the husband including any stamp duties or other fees required to be paid in relation to such transfer; that within seven days of the date herein the husband sign all documents necessary to transfer to the wife the tinny boat and motor at the sole expense of the husband including any stamp duties or other fees required to be paid in relation to such transfer. The estimate of value is $500 and if the wife is able to solely retain either that fund or these assets for her own use a sum of 500 is to be deducted from the funds owed. Similarly, in relation to the order that the husband transfer the Toyota Hilux to the wife, the order will read that upon sale of the vehicle and after deduction of any costs relevant - necessary to be expended to enable the wife to sell the vehicle in the event that there are any net proceeds (if the wife is able to sell the vehicle) the wife is to account for that sum and that sum will be deducted from the amount owing.
I would further order that the husband do all acts and things to cooperate in any request from the wife to redeem any value of the [A] insurance premium currently held in his name (assuming that it has some value) and that the husband provide to the wife’s solicitors forthwith written evidence from [A] of the amount of any such redemption pay out figure, the husband provide any and all authorities for any requests of any information whatsoever in relation to this fund and provide an authority to the wife’s solicitor and to the [A] fund to enable them to discuss such transfer matters with the wife’s solicitor.
A similar order is to be made that the husband is to cooperate in all requests for transfer of the whole of the interest in the [J] Proprietary Limited Superannuation Fund as it currently stands now or at any time in the future and to cooperate in all manner possible to effect either a single splitting order or more than one splitting order as requested by the wife and agreed to by the trustee at the sole expense of the husband, to the maximum extent that it can be split to satisfy the judgment sum, interest and costs. That order is to apply to the [J] Superannuation Plan and to the [A] superannuation fund. Any funds which ultimately materialise as a result of any superannuation splitting are to be accounted for and may be deducted from the amount owing by the husband.
I will order a garnishment order in standard terms in relation to the wages of the husband with this employer or any employer now or in the future (on any income whatsoever), until such times as the full amount owing to the wife is paid and to that extent I will make orders requiring the husband to keep the Court and the wife informed of all sources of income derived from any source, the identity and full details of each and every employer currently or in the future until such time as the orders are complied, and keep the Court so informed advising the Court or the wife within 24 hours of any change.
I will also issue orders that the husband is to do all acts and things to assist with any machinery provisions and orders necessary to be implemented to effect a garnishment Order from his current employer or any future employer and this will include if the husband goes into his own business or any other scheme that the husband comes up with in relation to earning an income. The amount to be garnisheed is to be no less than $2000 a month noting that the husband earns in excess of $70,000.00 and the wife has liberty to apply for an alternate order depending on the income of the husband.
The husband is to forthwith provide as of today copies of all bank statements for any bank accounts in any financial institution held by himself or in which he has an interest with any other person, including his current girlfriend, and he is to provide bank statements to the wife each 30 days. He is also to provide his own credit card statements to the wife each 30 days until such times as these orders are to be fully complied with.
I reserve the opportunity to add any other machinery provision orders that are required in order to ensure compliance with the orders that I am making. The parties will have liberty to apply in relation to any machinery provisions to ensure compliance with these orders.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Willis FM

Date: 18 May 2011