RATHDOWN & MARTELLO

[2016] FamCA 221

FAMILY COURT OF AUSTRALIA

RATHDOWN & MARTELLO [2016] FamCA 221

FAMILY LAW – SERVICE – Application pursuant to r 7.02 that service has been effected on the husband – where the wife is uncertain as to the husband’s current residence – where the documents relied upon by the wife have been forwarded to the husband by email – where email communication between the wife and the husband and between the wife’s solicitors and the husband indicate that the husband is aware of the wife’s application and of the hearing date – held that service has been effected upon the husband

FAMILY LAW – PROPERTY – Undefended hearing – application by the wife for child support, the transfer of properties into her name and the sale of one of those properties to reduce mortgage liabilities –  where the mortgagee has instituted proceedings – where the wife alleges that the husband has unilaterally purchased properties, refinanced loans and diverted funds without her knowledge or consent – no appearance by the husband – where the husband has indicated an intention to sell both properties the subject of the wife’s application – interim orders made in terms of the wife’s application

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: Ms Rathdown

RESPONDENT: Mr Martello

FILE NUMBER: MLC 1456 of 2016

DATE DELIVERED: 8 April 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 5 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Crofts

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

THE RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

Service

1. Pursuant to r 7.02 of the Family Law Rules 2004 (Cth) (“the Rules”) the wife’s Initiating Application filed 22 February 2016 is found to have been served on the husband.

2. Pursuant to r 7.18(1) of the Rules the wife serve:

   (a)       a further copy of her Initiating Application filed 22 February 2016;

   (b)       a further copy of her Affidavit filed 22 February 2016;

   (c)       a copy of the Affidavit  of Ms B affirmed 4 April 2016;

   (d)       the reasons delivered this day and a sealed copy of these Orders;

   (e)       any other document required to be, or which she seeks to file in these proceedings;

   on the husband by email to …

Property Transfer, Sale & Mortgage Payments

1. Within seven (7) days the husband do all things necessary, and sign all such documents as are required to transfer to the wife all of his right, title and interest in the following:

   (a)the real property situate at C Street, Suburb D, in the State of Victoria, being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“C Street”); and

   (b)the real property situate at and known as E Street, Melbourne in the State of Victoria, being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“E Street”).

2. Within fourteen (14) days from the date of transfer of the properties pursuant to paragraph 3 herein the wife do all things necessary, and sign all such documents as are required to sell E Street at the earliest practicable date and upon settlement of the sale the proceeds of sale be paid in the following manner and priority:

   (a)all costs and expenses of sale including legal costs and disbursements and agents commission;

   (b)to discharge mortgage dealing number … in favour of the Australia and New Zealand Banking Group Limited (“ANZ”) secured over the title to E Street; and

   (c)the balance then remaining to be paid to the ANZ in reduction of mortgage dealing number … secured over the title to C Street.

3. Within seven (7) days the husband do all things necessary, and sign all such documents as is required to instruct F Property Pty Ltd to pay all rental income received from the tenant of E Street directly into the ANZ mortgage account.

4. Within seven (7) days the husband do all things necessary, and sign all such documents as is required to instruct F Property Pty Ltd to pay all rental income received from the tenant of property situate at and known as G Street, Suburb H, in the State of Victoria, being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“G Street”) directly into the Martello Superannuation Fund Commonwealth Bank of Australia (“CBA”) SuperGear account.

5. In the event the husband refuses or neglects to sign and return to the wife (within four (4) days of a written request to do so) any documents or do any act necessary to effect the terms of these Orders, a Registrar of the Court is hereby appointed pursuant to the provisions of s 106A of the Family Law Act 1975 (Cth) to execute such documents on behalf of the husband and husband is ordered to pay all reasonable costs incurred by the wife.

Injunction

1. Until further Order, the husband personally and in his capacity as officeholder in any company or trust, by himself, his servants and agents, be restrained from encumbering or further encumbering or aiding the encumbrance or further encumbrance of the following real properties without the prior written consent of the wife or Order of this Honourable Court first had and received:-

   (a)G Street;

   (b)the property situate at and known as I Street, Melbourne, in the State of Victoria, being the whole of the land more particularly described in Certificate of Title Volume … Folio …;

   (c)the property situate at and known as J Street, Sydney, in the State of New South Wales, being the whole of the land more particularly described in Folio …;

   (d)the property situate at and known as 2 J Street, Sydney, in the State of New South Wales, being the whole of the land more particularly described in Folio ....

Urgent Child Support

1. Pending an assessment of child support or until further order, the husband pay by way of urgent child maintenance for K born … 2008 the sum of $500 per week such sum payable directly into a bank account nominated by the wife, pursuant to s 139 of the Child Support (Assessment) Act 1989 (Cth) commencing 15 April 2016 and to be paid weekly thereafter.

Disclosure

1. Within fourteen (14) days the husband make full and frank financial disclosure including by discovery of documents.

2. In the absence of full and frank disclosure by the husband including default of compliance with his obligations in accordance with the provisions of paragraph 10 herein within the time limited therein the wife have leave to issue subpoenae.

Liberty to Apply

1. The matter be listed in the Registrar’s Directions List at 9.30 am on 13 July 2016.

2. There be liberty to the husband to apply in respect of these Orders on the husband making and filing:

   (a)an application in a case setting out with particularity the Orders he seeks;

   (b)       an affidavit setting out with particularity:

   (i)the reasons why the husband failed to appear or be represented this day including if the husband asserts that his non-appearance was due to ill health any medical evidence in support of that assertion;

   (ii)his proposal for the payment of any monies owed to the ANZ Bank or in respect of the CBA SuperGear account;

   (iii)an accounting for his salary and termination benefits from HSBC

   (c)       a financial statement;

   (d)       a response to the wife’s Initiating Application filed 22 February 2016.

Costs

1. The wife’s costs arising out of or incidental to her application for interim property orders heard on 5 April 2016 be reserved.

IT IS CERTIFIED THAT

Pursuant to r 19.50 of the Rules this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rathdown & Martello has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1456  of 2016

Ms Rathdown

Applicant

And

Mr Martello

Respondent

REASONS FOR JUDGMENT

1. On 22 February 2016 the wife filed an Initiating Application (“the application”) seeking final orders for property settlement. The wife also sought interim orders and it is her application for those interim orders that is listed for hearing before me in the Judicial Duty List.

2. The orders the wife seeks and the issues I am asked to determine are as follows:

   a)The transfer of two properties registered in the name of the husband to the wife;

   b)The sale of one of the two properties so as to discharge the mortgage over that property and the application of the balance of the proceeds of sale to the reduction of the mortgage over the second property;

   c)The direction of the rental income received for the property proposed to be sold, pending its sale, to the mortgage over that property;

   d)The direction of the rental income for a property owned by the husband’s self-managed superannuation fund to the mortgage secured over that property;  

   e)An order pursuant to s 106A of the Family Law Act 1975 (Cth) (“the Act”) to give effect to the transfer of the properties to the wife’s name in the event that the husband fails to comply with the orders;

   f)Injunctive relief against to prevent the husband from encumbering real properties owned by his self-managed superannuation fund;

   g)Urgent child support;

   h)Orders for further disclosure and leave to issue subpoenae in the event that the husband fails to comply.

Background

1. The husband was born in 1972 and is 44 years of age.

2. The wife was born in 1971 and is 44 years of age.

3. The parties commenced cohabitation in September 2006 and were married in 2007. Although the parties have lived apart since 2012 they separated finally on 22 December 2015.

4. There is one child of their marriage, namely the child K who was born in 2008 and is now eight years of age. The child lives with the wife. The husband has a daughter of a previous relationship who is 11 years of age.

5. The wife is a qualified teacher and works four days per week between two schools. The husband has a Degree and has generally worked in the finance industry. It is the wife’s evidence that in November 2015 the husband was retrenched by his most recent employer. 

Service

1. The wife’s evidence is that she does not know where the husband is currently living although she believes he may be living in Country L. The Court was also informed by counsel for the wife that although the wife had been advised by her sister-in-law that the husband had arrived in Sydney last weekend this could not be confirmed. The wife’s case is that in these circumstances she has no way of effecting service personally upon the husband.  

2. It is the wife’s case that although it was not possible to personally serve the application, or her Affidavit in support of that application for interim orders and Financial Statement both filed on 22 February 2016, the Court can be satisfied that the husband has received a copy of the wife’s documents, is aware of the hearing and that the Court should proceed in his absence and make the orders she seeks on an undefended basis.

3. The wife relied upon the Affidavit of her solicitor, Ms B, affirmed on 4 April 2016, which I granted her to leave to file on 5 April 2016. Ms B deposed at paragraph 4 that on 22 January 2016 she sent a letter to the husband in relation to financial matters. On 5 February 2016 she received an email from the husband and thereafter exchanged a number of emails with the husband.

4. On 22 February 2016 Ms B caused a letter to be forwarded to the husband by email enclosing sealed copies of the application, the wife’s Affidavit in support and her Financial Statement. The husband responded to Ms B’s email as follows:

   This is the first time I have seen the attached documents. Looking through these briefly I do not agree with what your client has proposed. I will need more time to find a lawyer and receive appropriate advice. The said settlement terms had already been agreed between [the wife] and myself. I will allow a further 24hrs for her to agree settlement before proceeding to sell all properties. Thanks and regards.

5. At 4.31 pm on 22 February 2016 Ms B says she received a further email from the husband advising as follows:

   Put simply I don’t agree to the demands laid out in the attached. You will receive a full written response from my lawyers (to be appointed). Nothing further to advise.

6. At 6.55 pm the same day Ms B received a further email from the husband as follows:

   A most unreasonable set of demands which I will never agree. I am sure the courts will look very favourably on my wife seeking to leave me with no home whilst she maintains the matrimonial home with all its trimmings. For the record I will have my lawyers challenge this at every turn. Music for the ears?

7. There were also a number of emails passing between Ms B and the husband in relation to his demands for access to the property and at 3.35 pm on 4 March 2016 Ms B received the following email from the husband:

   I want to hear from your client what she needs to bring this to a quick settlement.

   I am suffering from bipolar (recently diagnosed), depression, and have chronic health condition (lifelong).

   I am unable to work and will be applying for benefits.

   Speak with your client.

8. Finally on 29 March 2016 the wife received the following email from the husband which she forwarded to Ms B:

   [Ms Rathdown]

   1.I need you to settle.

   2.I will not contest the case next week. I have no money and returning Australia [sic] for emergency surgery to my hand.

   3.I have laid out generous settlement terms.

   4.This must now include cash component.

   You are doing yourself a great disservice as my family watch you put me into financial ruin.

   I want out now.

   Agree and settle please. I want to move on with my life.

9. Rule 7.02 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that the court may find that a document has been served, even though there has not been compliance with the Rules in relation to service. In all of the circumstances I am satisfied that the husband was served by email with the wife’s application, her Affidavit and her Financial Statement on 22 February 2016.

10. The Rules provide that a party must file a response to an initiating application if the respondent seeks to oppose the orders sought by the applicant or seeks different orders. That response and any affidavit filed with it must be filed at least seven days before the date fixed for the Case Assessment Conference, procedural hearing or hearing to which the response relates (r 9.08). The husband did not file a response or any affidavits. After the matter commenced the husband was called but did not appear.

11. Rule 11.02(c) provides that if a party does not comply with the Rules or a procedural order the court may inter alia determine the case as if it were undefended. I am satisfied, having found that the husband has been served with the documents, the husband having had the opportunity to obtain legal advice if he chose to do so and he having advised the wife that he did not intend to contest her application, that the Court should deal with the wife’s application for interim orders on an undefended basis.

Orders for the Sale of Property Registered in the Husband’s Name

1. The wife in her Affidavit filed 22 February 2016 deposes in some detail to the financial history of the marriage and in particular in relation to the properties acquired by the parties during the marriage and the basis on which they were acquired. This includes a table of what she says she knows about the parties’ current assets and liabilities which is as follows:  

Assets	Registered Owner	Estimated Value
C Street, Suburb D	Husband	E$750,000
E Street, Melbourne	Husband	E$600,000
Car Space M Street, Melbourne	Husband	$NK
N Pty Ltd	Husband	$NK
Motor vehicle 1	Wife	$5,000
Self-Managed Super Fund
2 J Street, Sydney	Husband/Wife	E$200,000
J Street, Sydney	Husband/Wife	E$100,000
I Street	Husband/Wife	E$100,000
G Street, Suburb H	Husband/Wife	E$460,000
Total Assets		E$2,215,000
Liabilities
Mortgage to ANZ secured against E Street Credit contract …	Husband	$564,193
Mortgage to ANZ secured against C Street credit contract …	Husband	$431,743
Personal loan	Wife	$10,000
Total Liabilities		E$1,005,936
Net Assets		E$1,209,064
Superannuation
Martello Superannuation Fund (Wife’s super to date of E$100,000 paid directly to the SMSF)	Husband/Wife	$500,000
HSBC	Husband	E$300,000

1. There are two apartments registered in the husband’s sole name. The first of those apartments is C Street, East Melbourne in which the wife lives with the child (“C Street”). The wife deposes that this property was purchased for $600,000 in August 2009 using funds obtained by refinancing a property registered in the parties’ joint names at O Street, Melbourne and borrowing the balance. The O Street property has since been sold after the mortgage fell into default when the wife says the husband diverted the rental income from the property and stopped making mortgage payments. 

2. The wife deposes at paragraph 58 that in June 2014 the husband refinanced C Street with the Australia and New Zealand Banking Group (“ANZ”) and withdrew approximately $109,000 at the time of that refinancing but she says she does not know how those funds were applied. The wife estimates the current value of the property to be $750,000. The current balance of the ANZ loan secured over C Street as at the date the wife swore her Affidavit was $431,743.

3. It is the wife’s evidence that in August 2011 the husband, without her knowledge or consent, purchased the apartment at E Street, Melbourne (“E Street”) off the plan. The husband completed the purchase in July 2014 using sale proceeds from the O Street property. E Street was registered in the husband’s name. The property was purchased for $605,000. The wife estimates the value of the property to be $600,000. It is subject to a mortgage to the ANZ Bank with a loan balance as at the date the wife swore her Affidavit of $564,193.

4. The wife deposes that in December 2015 she received notice from the ANZ that the mortgages secured over both C Street and E Street  were in default. It is her evidence that the husband has never taken responsibility for or contributed towards the mortgage payments for C Street. Although the wife deposes that from 2014 to 2015 the husband applied the rental income from E Street to pay the mortgage she says that in 2015 he stopped making those mortgage payments. According to the notice of default sent to the husband care of C Street, as at 2 November 2015, there were mortgage arrears of $11,616.80.

5. The wife says at paragraph 85 of her Affidavit that when she contacted the husband in relation to the arrears he told her to take out a loan to settle the arrears and that if she did not do so the ANZ would take immediate action in the Supreme Court and sell the C Street property in which she was living. Although the wife asked for the log in details for the ANZ mortgage accounts the husband did not send them to her. The wife says at paragraph 86 that on 31 December 2015 she obtained a personal loan of $10,000 and used those funds and her savings to reduce the mortgage arrears. The wife evidence is that she has now exhausted her savings and the loans continue to be in default.

6. On 22 January 2016 ANZ instituted proceedings in the Supreme Court of Victoria for the sale of both C Street and E Street. The wife instructed her solicitor to write to ANZ’s solicitors to request that they refrain from taking any further action so as to allow the wife to seek an order allowing her to sell the E Street property, discharge the mortgage over that property and apply the balance of the proceeds of sale to the mortgage over C Street. Although when the wife swore her Affidavit her solicitors had not received a reply to their request, I was advised by counsel for the wife that the ANZ were aware of this application and had agreed not to take any further action pending the outcome of the application.

1. The wife also deposes that she has made enquiries in relation to refinancing of the C Street mortgage and has been advised that she will be in a position, on her current income, to borrow $400,000.

2. Pursuant to s 114(1) of the Act the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate. This includes an injunction in relation to the property of a party, and as in this case an injunction to preserve the parties’ equity in that property. I am satisfied that in this case it is proper to make the orders with respect to the sale of the property as sought by the wife having regard to the following matters:

   a)The arrears are continuing to accrue notwithstanding the wife has been making payments with respect to the C Street property;

   b)The ANZ having instituted proceedings, the sale of one or both of E Street and C Street is inevitable.

   c)It is generally accepted that it is likely to be in the interests of parties who find themselves in this situation to control the sale of their properties so as to maximise the proceeds of the sale rather than have those properties sold by a bank with the costs of that sale being added to the parties’ debt to the bank further reducing the parties’ equity. There is nothing to suggest that that would not be the situation in this case;

   d)The wife has been living in the C Street property with the child since December 2011 and has been meeting the mortgage payments with respect to that property;

   e)The wife is taking steps to address the arrears  by seeking a sale of one property and the reduction of and refinancing of the mortgage over C Street;

   f)The husband’s lack of participation in the proceedings; and  

   g)The husband has told the wife’s solicitor that he would be giving instructions for the sale of both properties.

3. It is hard to see how the husband could oppose the transfer of the two properties to the wife or the sale of E Street or what prejudice there could be to the husband if the Court were to make the orders sought by the wife in circumstances where those orders will have the effect of avoiding the costs associated with the sale of C Street whether or not that sale is controlled by ANZ or by one or both of the parties and will help to preserve the parties’ equity in C Street. These are interim orders and ultimately that equity will form part of the pool of property for the purposes of the wife’s application for property settlement and any application the husband might make if he chooses to participate in the proceedings. I am satisfied I should make the orders sought by the wife.

4. The wife also deposed at paragraph 90 of her Affidavit that when she became aware of the mortgage arrears she contacted the agent managing the E Street property, F Property Pty Ltd (“F Property”) and instructed them to pay the rental income of approximately $2,300 per month into her savings account. The rent has been paid into her account since November 2015 and applied by the wife to reduce the arrears. The wife seeks an order to requiring the husband to instruct F Property to pay all rental income received from the tenant of E Street directly into the ANZ mortgage account pending the sale of the property. I am satisfied that I should make this order to protect the interests of both the husband and the wife.  

Orders with Respect to Rental Income from Property held in the Superannuation Fund

1. There are two units in J Street Sydney, a suite on I Street, Melbourne and an apartment in G Street, Suburb H registered in the name of the Martello Superannuation Fund (“the Superannuation Fund”). The trustee of the Superannuation Fund is N Pty Ltd (“N”). The wife says that both she and the husband are directors of N, that the husband holds 5,000 ordinary shares and that she holds 10 Class A shares. It is the wife’s evidence that on 4 March 2008 she transferred $45,000 of her superannuation entitlements to the Superannuation Fund. The wife says that despite being a director of the company that acts as trustee of the Superannuation Fund and having entitlements in the Fund she is not a signatory to the Superannuation Fund accounts, including what she refers to as the Commonwealth Bank (“CBA”) SuperGear account which appears to have been used by the husband to finance purchases by the Superannuation Fund, and does not have access to information financial or otherwise in relation to that fund.

2. The wife deposes at paragraph 93 of her Affidavit that on 10 February 2016 she received a letter from the CBA in relation to arrears owing on the Superannuation Fund’s SuperGear account. After receiving that letter the wife instructed her solicitors to contact F Property, the managing agents for the G Street property. F Property advised that G Street is tenanted and that the current rental income is $1,999 per month. The wife says that she was also advised that the rental income was being paid into a N account to which she had no access. Accordingly the wife instructed her solicitors to write to F Property on her behalf, in her capacity as a director of N requesting that thereafter all rental income for G Street be paid into the Superannuation Fund CBA SuperGear account.

3. The wife seeks an order requiring the husband to instruct F Property to pay all rental income received from the tenant of G Street directly into the CBA SuperGear account. It is her case that there is a risk that the husband might direct F Property to pay that rental income to him directly. I am satisfied that it is proper to make the order sought by the wife. The wife’s unchallenged evidence is that the husband stopped making the mortgage payments. If the husband were to divert rental income away from the mortgage it would seem almost inevitable, in circumstances where the mortgage is already in arrears, that the bank would step in and take the necessary steps to force a sale. That would be likely to lead to the further diminution of the parties’ financial position.  In all of the circumstances I propose to make the orders sought by the wife in order to preserve the asset pool pending the outcome of the property proceedings.

Injunctive Relief and s 106A Order

1. I am satisfied in light of the husband’s decision not to appear or be represented at the hearing before me and his actions generally in relation to the parties’ financial arrangements, both during the marriage and since separation, as deposed to by the wife, that I should make both the injunctive orders the wife seeks and the order pursuant to s 106A of the Act.

2. According to the wife’s evidence the husband has, without her knowledge or consent, purchased and sold properties, refinanced properties and withdrawn funds without having accounted to the wife for those funds, diverted rental income allowing mortgages to fall into default, and forged her signature. The wife further says that the husband has refused her requests for information and/or access to accounts.

3. The wife also deposes to the various emails she has received from the husband in which he has threatened to “sell everything”.    

4. The injunctive relief the wife seeks is intended to prevent the further diminution of the parties’ equity in the properties owned by Superannuation Fund and I am satisfied in all of the circumstances that it is proper based upon the evidence before me and having regard to the husband’s indication that he did not intend to contest the wife’s application to make the order she seeks.

5. I am also satisfied, in light of the husband’s decision not to participate in the proceedings, that I should, as a precaution, make an order pursuant to s 106A so as to ensure that the orders the Court makes, including those orders with respect to the transfer of the two properties to the wife and the instructions to be given to F Property, are given effect.

Urgent Child Support

1. The wife also sought an order for urgent child support pursuant to s 139 of the Child Support (Assessment) Act 1989 (Cth) in the sum of $500 per week.  Although she did not specifically depose to having applied for an assessment of child support, a prerequisite to the court making an order for urgent child support, I was advised by her counsel that she had made that application approximately one month ago. That could mean that any order the Court makes for urgent child support will only have effect for a limited period, however counsel for the wife advised that as the husband has been living overseas for some time the assessment process may not be as straightforward.

2. I am satisfied based upon the evidence contained in the wife’s affidavit and her Financial Statement that the wife’s expenditure directly referable to the child is$357. This does not include the cost of putting a roof over his head and does not appear to make any allowance for the cost of transporting the child for the purposes of school, extra-curricular and social activities. The wife also deposes to not being able to afford private health insurance notwithstanding that the child has a heart condition that requires monitoring on a yearly basis. I am also mindful of the fact that the wife has a significant shortfall of income over expenditure and it would not be surprising in those circumstances if the amounts she spends were to be a reflection of her capacity rather than based solely the child’s needs.

3. The wife in her Financial Statement discloses gross income of $1,400. In circumstances where she is making mortgage payments of $600 per week and is receiving no child support or other financial support from the husband she is left with a significant shortfall.

4. Although the husband refers in his emails to the wife to having health issues, in circumstances where he has failed to file any answering material and chooses not to contest the wife’s application there is no evidence as to what, if any, impact those health conditions may have upon his capacity to earn income. Whilst I am satisfied that the husband was recently made redundant from the position he held, I am unable to make any assessment of what his employment prospects may be going forward. I am also satisfied based upon the payment advice relied upon by the wife (Exhibit W1) that as recently as 8 January 2016 the husband received by direct credit to his account approximately AUD$120,000.

5. I am satisfied in all of the circumstances that the child is in urgent need of financial assistance, that the husband has the capacity to contribute to his support and that the amount sought by the wife is appropriate. I propose to make the order sought by the wife.

Other Orders

1. In circumstances where the husband has chosen not to participate and whether or not he does decide he is going to participate in the proceedings, steps need to be taken to advance this matter. To that end the wife seeks orders that within 14 days the husband make full and frank disclosure. It speaks for itself that the husband will need to do so if he wishes to participate in the hearing, however in the absence of the husband doing so and in circumstances where the wife will no doubt be seeking to have the matter proceed on an undefended basis, she seeks leave to issue subpoenas. I am satisfied I should make the orders the wife seeks. These orders will take some time to implement and in those circumstances I propose to list the matter for hearing in the Registrar’s Directions Hearing List in early July.

2. Although I am satisfied that the husband was served with the wife’s application and supporting documents I am mindful of the fact that the husband in his emails to the wife refers to having health issues. In these circumstances I propose to grant the husband liberty to apply in relation to these orders upon certain conditions. Those conditions will include the husband filing an affidavit explaining why he failed to appear or be represented at the hearing before me and, if he says that that was due to ill health, providing medical evidence supporting his assertions, his proposals for the payment of any mortgage arrears owing to the ANZ and CBA SuperGear account and his proposals for the payment of those mortgages on an ongoing basis and accounting to the wife for the salary and termination benefits paid to him. I also propose to order that the husband file a response to the wife’s Initiating Application and a financial statement.

Costs  

1. The wife also sought an order that the husband pay her costs of and incidental to these proceedings. The Court is making the orders the wife seeks and in those circumstances I am not satisfied that there are circumstances which would justify an order for costs. However, if the husband seeks to have these orders set aside or further hearings are required as a consequence of the husband’s failure to participate in the proceedings to date, the circumstances may be different and on that basis I propose the reserve the wife’s costs of this day.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 8 April 2016.

Associate: 

Date:  8 April 2016