Telama and Telama

[2008] FamCA 983

FAMILY COURT OF AUSTRALIA

TELAMA & TELAMA [2008] FamCA 983

FAMILY LAW – CHILDREN – with whom a child spends time – order suspended until further order
FAMILY LAW – INJUNCTION – changing nominated beneficiary under superannuation fund / insurance policy
FAMILY LAW – MAINTENANCE – spousal/child

Family Law Act 1975 (Cth)

APPLICANT: Ms Telama

RESPONDENT: Mr Telama

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

FILE NUMBER: SYC 1450 of 2008

DATE DELIVERED: 4 SEPTEMBER 2008

PLACE DELIVERED: SYDNEY

PLACE HEARD: SYDNEY

JUDGMENT OF: LOUGHNAN JR

HEARING DATE: 4 SEPTEMBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Millar

SOLICITOR FOR THE APPLICANT: Barkus Edwards Doolan

SOLICITOR FOR THE RESPONDENT: No appearance

INDEPENDENT CHILDREN’S LAWYER: Ms Connor

Orders

IT IS NOTED

1. There is no appearance by or on behalf of the husband at 2:50 pm today.

IT IS ORDERED

1. The Court requested that the Independent Children's Lawyer seek the issue of a subpoena to L Hospital for information relating to the husband’s admission on 1 September 2008 and thereafter, and in relation to any information in the records of that hospital as to the husband’s health.

2. The parenting proceedings are adjourned with liberty to any party or the Independent Children's Lawyer to restore to the list on giving 48 hours written notice to the other parties and to the Court.

3. That paragraphs 3, 4, 5 and 11 of the Interim Orders made on 1 August 2008 are suspended until further order AND THE COURT NOTED that for the avoidance of doubt that as a result, the current orders make no provision for the husband to spend time with the children S born … July 1999, C born … November 2000, K born … September 2002 and J born … December 2004.

4. Orders are made in terms of paragraphs 4 and 5 of the Application in a Case of the wife filed by leave today as set out hereunder:

   “4.That the husband be and is hereby restrained from assigning, transferring, dealing with or changing the nominated beneficiary under his [N Company] Staff Superannuation Plan, Asgard Superannuation Plan and his Commonwealth Life insurance policy or any other policy held by in the husband’s name over his own life in favour of any other person(s) other than the wife.

   5.In the event that the husband has changed the nominated beneficiary under his superannuation or any life insurance policies then the husband shall within 48 hours of the date of the making of these Orders ensure that such nomination be altered so that the wife shall remain the sole beneficiary under the said policies.”

5. Orders are made in terms of paragraphs 1-22 of Exhibit A, changing the figure $2,350 to $2,000 in Order 2.

6. The proceedings are adjourned in relation to a subpoena to N Company to the Subpoena List at 10:30 am on 10 September 2008.

7. Leave to the parties to inspect documents produced on subpoena by American Express

8. That the costs of the wife of and incidental to the interim proceedings which were listed on 2 and 4 September 2008 are reserved.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1450 OF 2008

MR TELAMA

Applicant

And

MS TELAMA

Respondent

REASONS FOR JUDGMENT

1. There is an application that those parts of orders made on 1 August 2008 that provided for the subject children to spend time with the father be suspended.  The husband is not present in Court today, notwithstanding that the matter was adjourned to today, at his request. He was on notice that aspects of the case, albeit perhaps only limited to issue about an expert dealing with parenting issues were adjourned to today.

2. There is evidence that the husband's step-mother, who is a Ms J Telama, apparently married to his father, received some messages from the father/husband, presumably intended for his father: “Dad:  I am ending it all this afternoon.  I hope that the guilt lives with you for the rest of your miserable life."  That was a message sent at 12.30 pm on Tuesday, the 2nd day of September.  Now, I think that is about six minutes after the matter concluded in my Court on that day.

3. On that date I had stood the matter in the list till 2.15. Prior to lunch the husband made an application for an adjournment on the basis that he had been hospitalised at L Hospital the night before in relation to the effects or treatment of sleep apnoea. He said that he was very tired and he could not continue that day and that he wanted the matter adjourned. Over the objection of the wife’s representative, I adjourned the proceedings to today.

4. Before adjourning the matter I asked the husband whether he was receiving treatment from a psychologist or a psychiatrist and my recollection is he brushed off that suggestion. The inference I drew from his presentation was that he did not think there were any issues in terms of mental health, just a question of the consequences of loss of sleep or inadequate sleep through the condition of sleep apnoea.

5. The husband’s step-mother contacted the wife again on the 3rd of September and said that she had received an SMS text message from the husband reading, "Don't ever try and ring me again, you disloyal fuckwit".

6. The wife's solicitors contacted the husband by email later that day and the husband responded to the wife with an email message, "How explicit do I have to be.  It's over.  Don't waste any more of your money on this disgraceful case." 

7. The wife points out that there is reference in the documents to a life insurance policy with comments, "You're the beneficiary of the policy".  The husband is the life insured and the value of the policy is $2 million. There is a reference in the husband's proposals for final orders, dealing in effect with security for spousal maintenance, to him agreeing to maintain the policy.

8. The husband forwarded to the Court on the 3rd of September, a document called the "summary of argument for the respondent husband" and it starts, "I do not wish to contest any of the orders the applicant is seeking" and it goes on with a complaint about the nature of the litigation, "In the situation where the emotional welfare of the children have suffered enormously, I regard this as contemptible and irresponsible behaviour."  He deals with some specifics of the financial claims made by the wife, refers to previous offers of settlement and goes on, "I'm not prepared to have my children who are already very upset by the prolonged conflict between their parents, subjected to further interviews with lawyers, family consultants and psychologists.  Accordingly, I withdraw all parenting proposals previously made by me and hereby agree to whatever parenting arrangements that the applicant is seeking" and he goes on about allegations of what he says are "false allegations" about violence by him against the child, C, and he finishes up with, "As a supposedly devout catholic, I draw her" - I think he means the wife - "attention to the eighth commandment of:  You shall not bear false witness against your neighbour" and that is the end of the document.

9. The husband is not here at 10 minutes to 3 today and I am satisfied that it is appropriate to deal with the matter. The husband has no notice of the application to suspend the orders. These are not unremarkable circumstances.  At one point in the last few days the husband has suggested he will kill himself.  The wife says that she understands from the police that they satisfied themselves yesterday that he was engaged on an N Company ‘work for the community day’ or something of that sort.  The circumstances are ambiguous.  It may be that the husband is just lashing out about some things in relation to members of his own family and his frustration in relation to these proceedings. Perhaps he just wants to have the litigation over but it is always worrying when somebody says that they will end their own life. There have been aspects of puzzling behaviour by the husband and I have referred to them on previous occasions.  In particular, he mocked up what purports to be a letterhead for the organization that is his address for service in the style of a firm of solicitors with his name, his partner's name and their cat as the principals of the firm. The husband has been described as being fourth in charge or in any event a very senior executive of his company.

10. You would not think that that sort of behaviour would have characterised a successful career in that business. The four children are young, I think nine through three years of age and they are not entirely capable of self-protective behaviour. Their lawyer supports the suspension. In my view it is sensible in those circumstances for the suspension of the husband’s time with the children.

    ORDERS DELIVERED

    RECORDED  :  NOT TRANSCRIBED

11. Turning then to the remaining issues, the background is that the parties married in 1996, separated in May of 2007. They have four children, S, C, K and J, who are nine, seven, five and three years of age, respectively.  The wife obtained qualifications in economics at Sydney University and then a graduate diploma through the Securities Institute of Australia 1988 to 1989. She did some work in stockbroking and then worked as a Consultant until June 2000.  She has not had paid employment since then.  The husband has always worked in finance and is the managing director of a division of N Company in Australia.  The husband travelled extensively with his work.  The parties first separated on the 31st of July 2006 or the 30th of August 2006, depending on which of the parties one accepts.  The husband moved out of the former matrimonial home at B, and into rental accommodation.  He moved back into the B property on the 5th of October 2006.  The husband says the parties did not reconcile then, the wife says they did.  On the 6th of May 2007, the husband left the B home for the last time.  The children and the wife remained in the home.

12. These proceedings started on the 12th of March.  On the 23rd of April 2008, Interim Orders were made in relation to a single expert for a repair report on the B property, to arrange for quotes for that work to be done, interim parenting arrangements for the parties' children, handover arrangements, a restraint about derogatory remarks, orders about child restraint and, pending a hearing, the husband was to pay $1020 per week to the wife together with certain outgoings in relation to the B property and the wife's motor vehicle, $2787.58 a month in child support, the first payable on the 3rd of May, thereafter monthly in advance together with certain other extra school-related and extracurricular costs, medical fees, health insurance and so on.

13. The parties were to file documents.  The husband was to pay $40,000 towards the wife's legal fees and was allowed to draw a similar amount for his own fees and there were some other peripheral orders.

14. Then, on the 4th of June orders were made by consent about the provision of information and an injunction in relation to drawing on the line of credit by more than $4000 until the 18th of June.

15. On the 28th of July, an order was made for substituted service of a subpoena on the husband's current partner and, then, on 1st of August, the matter was listed for an interim hearing. On that date, the parenting aspect of that was heard and certain orders were made, some by consent, but the gist of it was that the children were to be with the father on alternate weekends from the end of school to the start of school and otherwise with the mother.

16. One order that was made relevant to today was an order that the husband do everything necessary to facilitate travel by the wife to Fiji between the 2nd and 12th of October and permitting her to remove the children from the Commonwealth for that arrangement, more injunctions in relation to the children and the children were ordered to be represented. The interim matters were not all finalised on the 1st of August and those matters were adjourned to the 2nd of September. 

17. Then, on the 26th of August, ex parte orders were made restraining the husband's employer from distributing to him anything in addition to his base salary from the date the order was made up until the husband completed his service and the wife gave the usual undertaking in relation to that.

18. On the 2nd of September, at the husband's application, the matter was adjourned to today's date and, as I have indicated in earlier reasons today, the husband is not present today.

19. I have been asked to read a document that he had presented to the Court which is styled "Case Outline Document" or something similar and, in that, although he obviously cavils with a number of the orders sought by the wife, he formally says that he does not oppose the orders. I have also been asked to read the husband's Response to an Application in a Case and I am asked to draw some inferences from his lack of opposition to certain categories of order and the style of the orders that he seeks.  It is a Response to an Application in a Case and yet the document refers to final orders.  So, it's a bit hard to draw a line from it to what might be his approach.

20. As a general proposition, the husband is not here, he says that he formally does not wish to contest any of the orders the application seeks. In those circumstances I need to be satisfied that there is evidence to support the claims of the wife and that, in the circumstances, those claims meet the requirements of the legislation.

21. First as to spouse maintenance, the orders sought by the wife are contained in a document which was provided to my Chambers on the 3rd of September, called "Orders Sought by the Applicant Wife at Interim Hearing on 4^th September".  Just to be clear about that, I will call that document "exhibit A".

22. Spousal maintenance is a remedy available between parties who have been married, whether the marriage is on foot or not, and the effect of the legislation is that, where a party to a marriage is able to demonstrate that they are not adequately able to support themselves from their own resources, the other party can be called on to provide that support to the extent of his or her capacity.

23. I am going to try and deal with this as economically as I can.  There seems to be a concession from the husband as to the threshold issue.  The concession is not strictly needed.  The wife has been out of paid employment since about 2000. There are four children and she has the predominant care of them, indeed for the time being, sadly, the sole care of them. The husband has provided financial support both in the style of child support and spousal maintenance.  He has made direct payments in the style of spouse maintenance and child support and he proposes into the future, even as a final order, that there would be spousal maintenance and child support. He specifies particular categories of payments in specie and payments of cash on a periodic basis in the orders that he seeks for the purposes of the litigation.

24. So, all of that adds up to a concession. The husband accepts and the Court should accept that the wife is not adequately able to support herself from her own resources. The husband agrees that he has some capacity to do it.

25. As to her financial position, the wife's income is family payments, tax benefits A and B and what she describes as a "pension". She the Centrelink benefits she receives $438 a week. I am obliged to ignore that income. Thus the wife has no income and she says that her expenditure is about $8300 per week.  That is contained in a Financial Statement filed on the 12th of March. There is an updating document that shows how some of those payments have gone up since.

26. So, the issue boils down to a question of the quantum of the wife's claim and the husband's capacity to pay.  The claim, firstly, is for direct payments in two categories, one related to the house and one related to a Chrysler motor vehicle. Although he may have cavilled with one or two aspects of the claim, the husband proposes that similar payments be made.  He has, in fact, been making similar payments and it seems to me that those payments should continue until further order.

27. As to the periodic sum, the wife seeks $2350 a week, I am told that is a rounded-out figure based on the estimates that have been set out in the Financial Statement, updated in the more recent affidavit.  I am told that, to the extent that there are categories of expenditure, which might seem to be unusual, that they bear a sensible relationship to the evidence about what happened in the past and, at least, are not adversely compared to the evidence of the husband's expenditure in recent times since separation. He spent something like $55,000 on a trip overseas. He has lifestyle expenditure, expenditure with vendors of alcohol, expenditure at significantly expensive restaurants, clothing expenditure and some other travel.

28. I have not done a reconciliation of the wife’s claim.  There is some doubling-up in the wife's Financial Statement as against the categories of direct payment that she seeks. 

29. So, I think in relation to maintenance, it is safe to say that she has a claim and there is no significant challenge to it.  It is not out of proportion to the standard of living of the marriage.  In cases like Wilson's case, courts are counselled about being too paternalistic about the expenditure in particular circumstances and accepting that there are different standards of living that are appropriate. 

30. So, I accept, for the purposes of today, that the wife's need is of the order of $2350 per week.

31. The next issue is the husband's capacity to pay. In that regard the events of the last few days are very worrying. The husband's income for the financial year ending 30th of June 2008 about $2.6 million. He received a bonus of $2.25 million in November, $1.2 million of which was paid in cash. His normal salary was something like $435,000 a year.

32. There is much conjecture about the fate of the $1.2 million cash component of the bonus.  Half of it was lost in tax. There are significant costs associated with the wife's household and the evidence in the summaries provided in evidence from credit card payments and so on show that the husband has also continued a very healthy level of expenditure.

33. It is not clear that any part of that bonus from last year exists in specie anywhere.

34. I was asked by Counsel for the wife to characterise it this way, the family has lived on the basis that the husband has his income, the family expenditure exceeds his income and the bonus, when it comes in, is used, perhaps after the event, to meet that expenditure. The imponderable is whether the husband's bonus this year will be as it was last.  Arguing against that is the husband's erratic behaviour.  He suggested in a hearing before me on one of the dates, I have forgotten which one, that he had tendered his resignation at lunchtime that day.  He later says that he never tendered that document or, to the extent that he had, it was withdrawn.

35. His behaviour is odd. His employer has been drawn into the litigation to an increasing extent.  Now, strictly speaking, that cannot have an adverse impact on his employment. However, there does not need to be a linkage drawn between his termination and the trouble caused by injunctions, subpoenas and so on.

36. Nextly, there has been some speculation about the husband's part of the business.  His immediate line superior, was sacked in a recent round of cost-cutting or rationalisation or whatever in the company.  There is no suggestion that the husband is going to be sacked, but it is of concern and, then, we have the problem of the credit crisis which notoriously affects the finance sector.

37. That is a long way of saying, it is not certain that the husband will receive a bonus this year or any significant bonus. I accept for the purposes of today, however, that one does take a line through the recent past to judge the future and, as much as you can rely on it, the husband's level of expenditure as seen in his credit card payments appears to be undiminished. He has made assertions that he cannot afford legal advice and so on and he has sacked his solicitors and, until today, was acting for himself, but that is all I know about it.

1. The expenditure that the wife seeks and the expenditure that the husband maintains, including I think a significant rental impost for premises he shares with his partner, would probably exceed his bare salary. As Counsel points out, the capacity to pay spousal maintenance is not assessed only by reference to income. Maintenance is paid by reference to the income, assets, financial resources and the reasonable earning capacity of a party. The husband has demonstrated an unbroken capacity for working at high level in the finance industry.  That does not mean that, at any particular time, he is able to immediately attract the sort of income that he has recently enjoyed.

2. Again, for the purposes of today, we have that history, we have the husband's undiminished expenditure, we have the fact that he does not formally attend here to oppose the orders.  The document that he prepared for me to see and I have seen it only because it has been called in the wife's case, says that he does not wish to contest any of the orders but it is certainly clear from the document that he does not believe he is able to pay and he refers to a deficiency of income over outgoings.  The problem with that is and it characterises his documents, he does not include his bonus in any documents for the purposes of these calculations. As Counsel says, this is a case where the husband's bonuses exceed the asset pool let alone his salary.  So, the bonuses are a matter of some moment.

3. There are other aspects to his income too.  As I said, $1.2M was paid in cash for the last bonus but the rest was built into a share scheme that gives benefits over a period of years. Presumably the intention is to holding him hostage to the employer and to the performance of the shares. Nevertheless, a value in excess of a million dollars was attributed to the non-cash component of the bonus last year.  There may even be tax advantages in relation to that issue. If I am wrong about that and if, for proper reason, the outcome of 2008 is a lesser bonus or no bonus, then that is a matter that the husband could rely on to support an application for a variation of the maintenance obligation.

4. I am going to round the order out to $2000 a week.  I am going to do that because there are overlapping payments in the wife's Financial Statement.  There is a necessary and exactitude in the estimates given and I am going to make the order of $2000 a week.

5. Turning to child support, that is a whole different head of jurisdiction. The Court's jurisdiction is based on there being a child support assessment. There are in evidence some documents which suggest that there has been an assessment. An order has already been made by consent for a payment of child support so I must have been satisfied on a previous date that there was an assessment. The Court does not have unfettered jurisdiction in relation to child support departure. There is a raft of steps one has to go through. I do not know whether the parties have been through them, I suspect not, and they terminate with an appeal of a decision made by the Child Support Registrar to the Social Security's Appeals Tribunal. Section 115 and 116 of the Child Support Assessment Act provide a way out. In circumstances where there are proceedings in a Court between the carer and the payer and the Court is satisfied that it will be in the interests of the carer and the payer for the child support issue to be dealt with at the same time as those proceedings.

6. The proceedings here have now turned into undefended interim proceedings. There is not a formal creature of interim child support departure but there is a provision similar to s 80 of the Family law Act in the Child Support Assessment Act or the Registration and Collection Act that gives the Court power to make an order until further order and, furthermore, the Court has already interfered to the extent that there has been a previous order and I think there is a let-out in relation to the obligations of the administrative scheme where that has happened.

7. I am satisfied on that basis that the Court has jurisdiction to deal with the child support issue.  I need to be satisfied about a ground in 117(2), whether it is just and equitable to make the order, 117(4), and whether it is otherwise proper, 117(5).

8. Grounds have been listed. I think one need not go much past the parties' income, assets and outgoings. There are also special aspects to do with the children, to do with the way in which the parties have wanted them educated, there are some health issues in terms of Coeliac Disease.

9. The administrative scheme focuses on average households and, indeed, the formula runs out of energy at something like two and a-half times average weekly earnings which is not a relevant figure in the scale of this family's circumstances.  So, I am satisfied there is a ground.

10. As to departure being Just and equitable, this is the question between the parties. The wife has got no income.  There is a similar provision in the Child Support Legislation to that referred to earlier in relation to spousal maintenance and I am obliged to ignore income tested benefits.  The wife has no income.  The children are with her mostly and, indeed, sadly for a period anyway, all of the time. All of the costs, unless they are paid directly, fall to her.

11. The wife says that she wants a payment of $4380 a week.  I think probably that needs to be segregated for the children but her expenditure is said to be different amounts for the different children; $1743 for S and running down to $1334 for J.  They add up to more than $4380 a week.  $4380 a week is $1095 per child, if it was evenly distributed.  I think it is necessary to express the costs per child for the purposes of a scheme.

12. In addition to that the wife seeks payment, on invoice, for school fees, preschool fees, including tuition, excursion, incidental sporting fees, uniforms and reasonable extra costs, medical insurance and the things not covered by the health fund, again they are categories of things that the husband contemplates in the orders that he was going to press, at least on a final basis. The husband proposed paying for all education costs, tuition and so on, health insurance but he had a different figure, $1250 per month per child.

13. Again, going through the detail on of it, there is some doubling up.  That is accommodated by the fact that the wife is asking for far less than the addition in her Financial Statement.  There is nothing extraordinary about the categories of expense, matched again by the sort of expenses that the husband has had.  So, doing the best I can, it seems to me that the orders for the time being are appropriate and, there is a provision in the orders that I am asked to make, that tells the Registrar that those payments will satisfy any further assessment.

14. The next claim for relief relates to interim costs.  The wife seeks the sum of $200,000.  This is based on an estimate provided by her solicitor of about $260,000 or $270,000.  The same document reveals that she paid something like $50,000 already. She is seeking $200,000.  She does not have any source of funds to obtain that money.  There has already been an order for interim costs.

15. The legislative source of the power is thought to be either section 117 or section 114.  It is accepted that as an exercise of preserving the integrity of the judicial process, parties need to be able to litigate on an equal footing. It not necessary to show that there is real complexity in the proceedings.  The only complexity in these proceedings is the treatment of the husband's income or earning capacity, otherwise there is a property and not much more. I think it is an agreed fact that the pool of assets is not much more than $2 million. I will say something about this later, but, certainly, there has been some extensive documentation prepared.  The matter has been in the list on a number of occasions.

16. As to whether the wife needs $200,000 now, that is an estimate of her costs to the conclusion of a five-day trial, as I read the estimate. We are nowhere near that yet.  It is not certain that there will be a five-day trial.  More than 80 per cent of cases - it used to be more than 90 per cent of cases - settle before getting to the door of the Court. The likelihood is that there will not be a need for it.

17. I think the issue boils down to a capacity to pay. The only available resource of that size that the wife is willing to commit to this expense is the husband’s bonus. There are shares but I was not told that the shares were worth $200,000.  So, the only likely source of the fund is a bonus paid to the husband.  If he gets a bonus of the order of the bonus he got last year, no harm is done in putting the wife's solicitors in funds to meet the entire cost of the litigation. The wife would be accountable for the application of that money and, on the usual principles, subject to any order for costs, that money would be likely to be read back into the list of assets as something she has already received.

18. So, I am really at the same point as I am in relation to maintenance.  The history suggests that there will be a payment. There is a cloud over it. The wife does not have any other resources to meet her costs. She has a contract with her solicitor which says that she is obliged to pay her costs in a proper way.  In any event, there are disbursements that the solicitors cannot meet on her behalf and payments have to be made.  So, there is a proper claim for costs and subject to the issue of that bonus being provided, then there is likely to be a source of funds and I will make the order.

19. The payment is not sought by any particular time and perhaps that is sensible in the circumstances. 

20. Nextly, there is an application for exclusive use and occupation of the property.  There is some evidence of conflict between the parties, of inappropriate attendances. The parties do not enjoy a good relationship, there is evidence of physical scuffling between the parties and the days when they can just enter uninvited on each other's property should be over. I will make that order and, indeed, I think it is consistent with the orders the husband seeks. He wants to meet the outgoings of the property, presumably for the benefit of the wife pending sale of the property.  So, for the time being, I do not think he seeks to return to live there.

21. Nextly, there is an application for orders for the personal protection of the wife.  Again, there is evidence from her of assaults, intimidating behaviour and threatening behaviour and there is the recent evidence of abhorrent behaviour by the husband and, of course, there is no contradictor.  The husband says he does not want to contest any of the orders that are sought.  He knows about the orders and I am not allowed to read any of his evidence in response.  So, the unchallenged evidence of the wife is that there is a need for this. There is no harm done to him.  He is not allowed to assault her, molest her, harass her, threaten her or interfere with her in any way in any event and he should avoid conduct that intimidates her, so I will make that order.

22. There is an application for some items of personality which were not addressed in submissions but they are not of great moment.  I will make the order.

23. Then there are orders seeking to constrain the husband so that he uses his salary for making payments and, if he is to go beyond that, he needs the wife's permission and to restrain him from disposing of assets. The only worry I have about that and I have raised this with Counsel, is constraining him to an impossible figure.  Again, he does not oppose the order.  It is already suggested that he has been in breach of a similar injunction made in the past.  It is a problem.  The injunctions would literally prevent some of the orders the wife is seeking being complied with, although she would no doubt say she will readily provide her consent in writing to the application of funds to meet those orders.

24. The orders are proper.  We is a lack of disclosure.  It is impossible to get a flavour of that really.  There has certainly been a torrent of correspondence going one way.  A lot of orders about information.  So, we have that.  We have abhorrent behaviour recently and certainly a contention by the husband that moneys are tight and then we have the contradictory evidence about significant expenditure by him.

25. In a way, everything the parties do is an expenditure of their joint moneys.  So, one way of expressing this is the wife simply asking for an accounting in relation to the expenditure of her own funds and, in a case where the pool of assets is relatively small, it is very important that the asset be preserved as best we can.  So, I will make those orders.

26. Then some orders are sought against the husband’s company and they are really to support the other orders to stop at that end anything beyond his base salary going to the husband, to keep the wife informed in relation to the husband's entitlements as they come up, orders giving effect to service and that moneys payable in those categories of other payments. 

RECORDED  :  NOT TRANSCRIBED

1. Nextly, we have Qantas Frequent Flyer points.  The wife has always used them for the benefit of herself and the children.  They have been denied to her recently.  She wants access to the points.  She wants her membership and his membership retained.  I think the order, as it is sought, leaves open those points going west but I will make the orders.  The frequent flyer points, although they do not often appear on a balance sheet, are assets of the marriage.  They are incidents of the husband's employment to some extent and incidents of the parties' travel. The order sought is not opposed.

2. Then there is application for discovery. The husband is also asked to produce documents. The wife needs to know of any such documents.  Some of them may not exist, in which case there is no impost on the husband. I will make those orders.

3. Then there are the trips to Fiji and Thredbo.  An order has already been made, as I said before, that the husband do everything to cause that trip to Fiji to occur. The order sought just specifies the amount that will be necessary to repay the wife to allow her to have that travel. There is some evidence of the amount involved.  So, I will make that order and similarly with an order in respect of travel to Thredbo.

4. Injunctions are sought, and I have already made the orders, in the application filed by leave today, paragraphs 4 and 5, dealing with the husband's superannuation and insurance.  Particularly because of the behaviour of the husband in recent times, because of the fact of the insurance policy that the wife owns over the life of the husband and the potential for the husband to change the nominated beneficiary in relation to superannuation or insurance, the wife seeks some orders that maintain the current situation or restore the previous situation if the husband has made any changes.

5. There is no evidence he has but, as I say, there is a course of unusual behaviour, perhaps aberrant behaviour and I made the orders on that basis.

ORDERS DELIVERED

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  18 November 2008