DIMITROV and DIMITROV

[2021] FCWA 233

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: DIMITROV and DIMITROV [2021] FCWA 233

CORAM: DUNCANSON J

HEARD: 9 NOVEMBER 2021

DELIVERED : 23 DECEMBER 2021

FILE NO/S: 4958 of 2019

BETWEEN: MRS DIMITROV

Applicant

AND

MR DIMITROV

Respondent

Catchwords:

PROPERTY - where a case guardian has been appointed for the wife - where the trial proceeded on an undefended basis - where it is just and equitable to make a property settlement order - where the division of property is close to equal - considerations of the justice and equity of the orders

Legislation:

Family Law Act 1975 (Cth) s 75(2), s 79, s 106A
Health (Miscellaneous Provisions) Act 1911 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	Ms G Anderson
Respondent	:	No Appearance

Solicitors:

Applicant	:	Fahey Mwenda D'Adamo
Respondent	:	Self-Represented Litigant

Case(s) referred to in decision(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dimitrov and Dimitrov has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1 The proceedings concern the division of the property of [Mrs Dimitrov], the wife and [Mr Dimitrov], the husband.

2 On 20 August 2019 the Public Trustee was appointed case guardian for the wife.

PROCEDURAL HISTORY

3 The wife filed her initiating application on 25 June 2019 seeking final property orders. By way of interim and procedural orders she sought an order that the Public Trustee in and for the State of Western Australia be appointed case guardian for the wife and she sought orders for disclosure.

4 On 20 August 2019 the Court made an order by consent that the Public Trustee be appointed case guardian for the wife. The Court made orders for disclosure and costs. The Court ordered that the husband file a response to the wife's initiating application within 28 days.

5 On 27 August 2019 the husband filed a response to an application in a case seeking orders, including that within 28 days of orders, the wife do all things necessary to sever the joint tenancy in respect of the property at [Property A] as between the husband and wife as tenants in common in equal shares.

6 The parties attended a conciliation conference on 4 March 2020. They were unable to reach agreement. Orders were made for the filing of documents, including a minute of orders sought on a final basis, an affidavit of each party and of their witnesses, and an up to date financial statement.

7 A pre-trial conference took place on 17 December 2020. The wife attended through her trust officer. The husband attended by telephone. He informed the Registrar he had not read the papers. The Registrar expressed concern about the capacity of the husband to understand the proceedings.

8 The wife filed a minute of final orders sought on 13 April 2021. Her trial documents were filed on 8 June 2021.

9 A readiness hearing took place on 8 June 2021. The husband did not attend and had not filed his trial documents. The time within which he was to do so was extended to 6 July 2021. It was ordered that in the event the husband failed to comply with the order extending the time to file his trial documents, the file be referred to the presiding Magistrate to consider whether the wife should be given leave to proceed on an undefended basis, or in the alternative, whether final orders could be made on the papers in terms of the minute of final orders sought by her on 13 April 2021.

10 At the readiness hearing the Registrar noted that the Office of Public Advocate had concluded an assessment into the capacity of the husband and were taking no further action in that respect.

11 The proceedings were included in the callover on 16 July 2021 and listed for trial on 9 November 2021.

12 On 13 October 2021 orders were made upon applications of the wife regarding valuations and other procedural orders.

13 The husband did not comply with orders for filing documents. He did not attend the readiness hearing. All documents have been served upon him. The husband did not attend the trial. Upon the application of the wife filed 29 October 2021 and having regard to the order made by the Registrar at the readiness hearing, I made an order on 9 November 2021 that the wife have leave to proceed on an undefended basis.

THE ORDERS SOUGHT BY THE WIFE

14 The orders sought by the wife are contained in an amended minute of final orders sought filed 29 October 2021.

15 The wife seeks an order that her interest in [Property B] vest in the husband and his interest in Property A and [Property C] vest in her. The wife seeks an order that the parties do all things necessary to transfer Property B to the husband and Property A to the wife. The wife proposes to prepare the documents required to transfer the title to the said properties and if required by Landgate pursuant to s 106A of the Family Law Act 1975 (Cth) ("the Act") the Principal Registrar or Registrar of the Family Court of Western Australia be appointed to execute documents on behalf of the husband.

16 The wife seeks an order that pending the transfer of the titles of Property B and Property A, the husband be restrained and an injunction be granted restraining him from encumbering or further encumbering or charging the titles thereto.

17 The wife seeks an order that she pay and indemnify the husband against any liability associated with Property A and Property C and he pay and indemnify her with respect to any liability associated with Property B.

18 The wife seeks an order that each party transfer or assign to the other his or her interest in the other's personal belongings, bank accounts and superannuation entitlements.

19 The wife seeks an order that each party retain the property in their respective names and be liable for and indemnify the other against any liability in that party's name or encumbering that party's property.

THE PARTIES AND THEIR RELATIONSHIP

20 The wife was born [in] 1965. She is 56 years of age.

21 The husband was born [in] 1958. He is 62 years of age.

22 The parties married [in] June 1988.

23 The parties separated for a period in the mid-1990s. The husband deposed this separation was for a period of not more than two years, and that they again separated for several months in 1998 before reconciling. The wife's position is that they separated in the mid-1990s for about six years.

24 The parties have no children.

25 In mid-2017 the wife was admitted to [Hospital A].

26 In September 2017, the wife was discharged into the husband's care.

27 Since the wife's discharge, the parties have lived separated under one roof [Property D]. Neither party has an interest in this property and they are permitted to live there by the husband's family.

Wife's Health and Guardianship

28 The wife suffers from [Condition A].

29 On 26 September 2017, the Public Advocate was appointed as the wife's limited guardian by order of the State Administrative Tribunal. The wife's delegated guardian is [Ms A], who is employed by the Office of the Public Advocate.

30 [Mr B] swore an affidavit on behalf of the Public Trustee on 8 June 2021. The Public Trustee deposed the wife is incapable of living independently, at least without support services in place for her. The Public Trustee noted that Ms A does not regard the wife's current living arrangement as suitable and does not support it due to a range of factors including that the wife:

•is unable to reside independently;

•lacks insight into her inability to live at home alone;

•lacks insight into her need for support services;

•refuses to allow services into Property A; and

•is extremely vulnerable to emotional and financial exploitation.

31 [Mr C] swore an affidavit on behalf of the Public Trustee on 22 October 2021. He provided recent evidence as to the wife's accommodation arrangements and financial circumstances.

32 The Public Trustee deposed that against the above background, there is a likelihood of the wife needing to move into either shared accommodation in the community (and pay for in-home support services) or transition into residential care, and she will require ready access to funds on either scenario. The Public Trustee deposed should the wife transition into residential care, the wife will likely be assessed to pay a Refundable Accommodation Deposit.

33 [Dr D] is a doctor with [Health Service A]. The wife is treated by Dr D's team at [Hospital B]. Following a request from the Public Trustee, Dr D swore an affidavit on 8 June 2021 annexing a report prepared by himself and [Ms E], [the wife's former carer]. Ms E also gave oral evidence. She said the wife has made it clear she does not wish to live on her own. The wife is living in a home owned by the husband's relatives and at any point her accommodation could be lost. Ms E said in the course of discussions with the wife, she became aware the husband had threatened to evict the wife. Ms E said the wife would need supported accommodation.

The husband's health

34 Following a pre-trial conference on 17 December 2020, the Registrar raised concerns as to the husband's capacity. In December 2020, the Public Trustee initiated a referral investigation to the Office of the Public Advocate in relation to the husband's capacity.

35 On 21 April 2021, the Public Advocate wrote to the Director of Trustee Services in relation to the investigation into the husband's capacity. The Public Advocate determined that based on the medical and other information, there may not be sufficient evidence that a guardian or administrator could be appointed for the husband. The Public Advocate decided not to lodge an application with the SAT and closed the investigation.

36 [Dr F] is the husband's treating general practitioner and has treated him since 2004. In response to a request from the Public Trustee, Dr F completed a Doctor's Guide in respect of the husband. Dr F also gave oral evidence. Dr F assessed that the husband does not have any impairment of his cognitive ability or mental function. He is capable of making reasonable decisions in relation to personal health, care, living situation and financial affairs and has the capacity to execute a valid enduring power of attorney.

37 Dr F noted that attending hearings would not be detrimental to the husband's health, that he speaks English and is independently mobile. In his oral evidence Dr F said the husband has been quite ill with physical problems lately, but he has no mental health problems and is able to make reasonable decisions. Dr F said the husband would not be very good in the Court, as he would get very angry and stated that the husband's view of lawyers is that they want to take his money.

SHORT FINANCIAL HISTORY

38 In December 1988 the parties purchased Property A as joint tenants for $58,000. The property was previously encumbered by mortgages in favour of [Bank A] which have since been discharged.

39 In November 1993 the wife acquired [Property E] as the sole registered proprietor for $16,500. A mortgage in favour of [Bank B] secured the sum of approximately $13,500 which has since been discharged.

40 In June 1994 the parties purchased Property B as joint tenants for $70,000. A mortgage in favour of Bank A was registered against the title, securing the sum of approximately $180,000.

41 In April 1996, the wife was gifted Property C by her mother. In April 2003, Property C was registered in the wife's sole name.

42 In or about December 2013, the mortgage in favour of Bank A against Property B was discharged.

43 In October 2016, the husband's mother died, leaving Property D to her grandchildren. She also left her net residuary estate, inclusive of [Property F] to the husband and his sister in equal shares as tenants in common.

44 In 2018 Property E was sold by the Public Trustee for $55,000. The net proceeds of sale of $48,827 were deposited into the wife's account in the Public Trustee Common Fund Account ("CFA") on 21 December 2018 and were utilised to pay expenses associated with the parties' real estate, as well as a debt the wife had with the Fines Registry.

45 Property B is boarded up and in a state of disrepair. On 8 February 2019 the Public Trustee obtained a property condition report. The report includes cost estimates for required repairs and clean up at the property to "prevent imminent and likely damage to the property" and "restore security" or "make the property safe where there is a real risk of injury to the occupants." The estimated costs exceed $50,000 and the report states "it is most likely not financially viable to carry out any of these repairs, land value only."

46 In the husband's affidavit filed 27 August 2019, he deposed he would be disclaiming his interest in Property F. As at October 2019, Property F was assessed on a kerbside basis to be worth $120,000 to $165,000.

47 In October 2019, the Public Trustee obtained a report regarding the value of Property C, which was assessed as having a value of $25,000 to $30,000.

48 Property A is presently subject to notices under the Health (Miscellaneous Provisions) Act 1911 (WA) declaring it unfit for habitation due to it being "infected with vermin" and "unclean due to presence of dog, cat and rodent faeces, rodent carcasses spoilt and decaying goods, accumulation of rubbish and disused items."

49 The wife was approved for funding through [Scheme A] of $33,749 for the period 4 August 2020 to 4 August 2021. The wife receives [Pension A] in the amount of $476 per week. Scheme A funding is reviewed on an annual basis.

50 The husband is believed to be in receipt of a [Scheme B] Allowance.

51 The husband withdrew $20,000 from his [Superannuation Fund A] in January 2019. As at 14 March 2019, the husband's Superannuation Fund A had a closing balance of $61,315 and at 24 August 2021 the balance was $78,146.

52 Since the wife's discharge from Hospital A in September 2017, the parties have lived separated under one roof at Property D.

53 The husband deposed Property D belongs to the estate of his late parents and neither he nor the wife have an interest in the property. He deposed they cannot inhabit this property indefinitely.

54 In October 2021 [Valuer A] provided sworn valuations of the parties' properties as follows:

•Property C $40,000

•Property F $200,000

•Property A $600,000

•Property B $450,000

THE LAW

55 These proceedings are governed by s 79 of the Act. Orders altering the property interests of the parties may only be made if the Court is satisfied that it is just and equitable to make such orders. The Court's discretion must be exercised in accordance with legal principles and the Court must not assume the parties' interests in their property are, or should be different from those determined by common law and equity.

56 It is necessary firstly to identify the existing legal and equitable interests of the parties in their property.

57 Having identified the existing legal and equitable interests of the parties in their property, it is necessary to ascertain whether it is just and equitable to make an order altering the interests of the parties in their property. In that process it is permissible to consider the contributions of the parties, but to do so is not mandatory, nor is it conclusive as to whether the just and equitable test has been met.

58 If and when the Court determines it is just and equitable for the parties' interests in their property to be altered the Court must identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c) of the Act. The Court must then identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g) of the Act which include those in s 75.

THE EXISTING INTERESTS OF THE PARTIES IN THEIR PROPERTY

59 The wife's updated property schedule became exhibit 5.

Legal costs

60 The wife has paid legal costs of $26,694. The source of funds used to pay those costs have been her income, the sale proceeds of Property E and borrowings.

61 The husband has paid legal costs of approximately $5,000.

62 Counsel for the wife submitted that the parties' paid legal costs should not be added back as a notional asset.

63 Counsel for the wife confirmed it was not the wife's intention to seek costs of these proceedings from the husband. The wife has outstanding legal costs of $28,404 together with counsel's fees and expert witness' fees which have not been included in the property schedule as a liability.

64 These proceedings were necessary to bring finality to the financial relationship between the parties. The costs incurred by the wife are greater than those incurred by the husband. The wife will not seek reimbursement of those costs by way of a costs order. In my discretion I do not intend to include the parties' paid legal costs as a notional asset in the balance sheet. I am satisfied this is an outcome which is just.

THE BALANCE SHEET

65 I find that the existing interests of the parties in their property to be as set out in the balance sheet below.

66 The numbers in the left-hand column accord with the line item number in exhibit 5. I have deleted entries where no value is stated on exhibit 5.

2	ASSETS AND LIABILITIES	Value (E$)
3	Joint
4	Property A	600,000
5	Property B	450,000
7	Council A	-9,245
8	Council B	-3,081
9	JOINT NET ASSETS	1,037,674

11	Husband
12	Inheritance (half interest in Property F)	100,000
13	Bank Account C	11,687
15	HUSBAND'S ASSETS	111,687
17	Wife
18	Property C	40,000
21	Bank Account A	298
22	Bank Account B	260
23	Public Trustee Common Fund Account	-11,204
27	WIFE'S NET ASSETS	29,354
29	TOTAL NET ASSETS	1,178,715
31	SUPERANNUATION
32	Husband
33	Superannuation Fund A	78,146
38	HUSBAND'S SUPERANNUATION	78,146
40	TOTAL NET ASSETS AND SUPERANNUATION	1,256,861

IS IT JUST AND EQUITABLE TO MAKE A PROPERTY SETTLEMENT ORDER?

67 Counsel for the wife submitted it is just and equitable to make a property division order and that this requirement is met by factors including the fact of the parties' separation, and those following:

•The parties' current arrangements have resulted in the bulk of their assets falling into a state of dilapidation and this is unlikely to change absent the making of property division orders;

•The parties' living arrangements are not supported by the wife's delegated guardian, nor are they in line with the wife's wishes, and according to the husband cannot continue indefinitely;

•The evidence regarding the requirement of ready access to funds for the wife's ongoing care; and

•The making of property division orders will not disturb the husband's current living arrangements, receipt of his inheritance and his superannuation entitlements.

68 The parties have lived separately under one-roof since September 2017. Following the breakdown of the parties' marriage, the parties continue to own property jointly and have not separated their financial affairs. In circumstances where the wife's living conditions are insecure and uncertain in the future, the wife seeks property orders to enable the parties to separate their financial affairs to enable the parties to provide for their respective needs. I find it is just and equitable to make a property settlement order.

CONTRIBUTIONS

69 The husband deposed that at the commencement of cohabitation, he had savings of approximately $20,000 which were proceeds of the sale of real estate in [Suburb A]. The wife's position is that neither party had substantive assets.

70 During the marriage the husband was self-employed as a [tradesman]. The wife was employed for some periods as a [tradeswoman] and provided the husband with bookkeeping and banking assistance for his business.

71 The wife's mother gifted Property C to the wife in 1996. In about 2016 the husband inherited a half-share in Property F.

72 The parties purchased Property A and Property B as set out above.

73 The proceeds of sale of Property E of $48,827 were applied to the expenses relating to the wife's Property C and also to the parties' joint properties. These expenses included shire and water rates, insurance and property maintenance. The funds were also applied to the wife's personal needs. The husband accessed $20,000 from his superannuation in 2019 and it is not known to what purpose those funds were applied.

74 Since the parties' separated they have lived together in a property which is not owned by either of them. The Public Trustee has continued to meet outgoings and other joint costs and expenses relating to the parties' properties. The husband has cared for the wife since she was discharged from hospital.

Assessment of contributions

75 I have considered the parties' differing contributions in the particular circumstances of their relationship from the commencement of cohabitation to date of trial.

76 The parties' marriage endured for about 29 years. I have taken into account that the husband received an inheritance shortly before separation being a half interest in Property F. I have also taken into account since the parties separated the Public Trustee has paid the outgoings pertaining to the parties' joint properties and continues to do so.

77 When I weigh the parties' respective contributions, I conclude that they should be assessed as equal or close thereto. The effect of this finding as to contributions is that each party is entitled to receive property to a value of $628,431.

SECTION 75(2) FACTORS

78 The wife is 56 years of age. She is the subject of a plenary administration and limited guardianship order of the State Administrative Tribunal. She suffers from Condition A as set out above. The husband is 63 years of age. He has [Condition B]. His general practitioner confirmed he is of poor physical health, although mentally capable. Neither party appears to be capable of gainful employment. The wife is in receipt of a Pension A of $476 per week and was approved for funding through Scheme A of $33,748 for the period 4 August 2020 to 4 August 2021. Funding is to be reviewed on an annual basis.

79 The husband was in receipt of Scheme B Allowance and subsequently [Scheme C] payments. The parties occupy Property D which is not owned by either of them. This may constitute a financial resource available to the husband provided by his family. The parties' commitments are to support themselves.

80 Both parties are entitled to government benefits. The husband has the superannuation entitlements with Superannuation Fund A as set out above.

81 The orders sought by the wife provide that the husband retains Property B. The parties acquired the Property B in 1994. Counsel for the wife submitted sale of Property B may trigger a capital gains tax liability, although there is no stated intention by the husband that he will sell Property B.

82 I take into account that the husband has not participated in these proceedings since the early stages. He has not complied with orders for disclosure.

ASSESSMENT OF S 75(2) FACTORS

83 The circumstances of both parties with respect to their health and earning capacity are difficult and are not dissimilar. The factors discussed above taken as a whole lead me to conclude, in my discretion that there should be no adjustment for s 75(2) factors.

JUST AND EQUITABLE

84 The property of the parties should be divided equally or close to equally. The total of the property of the parties is $1,256,861. On an equal division each parties' entitlement is $628,431. The wife will retain the following:

ASSETS AND LIABILITIES	Value (E$)
Property A	600,000
Council A	-9,245
Property C	40,000
Bank Account A	298
Bank Account B	260
Public Trustee Common Fund Account	-11,204
TOTAL NET ASSETS	620,109

85 The husband will retain the following:

ASSETS, LIABILITY AND SUPERANNUATION	Value (E$)
Property B	450,000
Council B	-3,081
Inheritance (half interest in Property F)	100,000
Bank Account C	11,687
Superannuation Fund A	78,146
TOTAL NET ASSETS AND SUPERANNUATION	636,752

86 The value of the property to be received or retained by the parties is close to, but not quite equal. The value of the property to be retained by the wife is $620,109 or 49%. The value of property to be retained by the husband is $636,752 or 51%. Although I have found an equal division to be appropriate, I am nevertheless satisfied that this division is appropriate and orders reflecting this division are just and equitable. The outcome above is that sought by the wife, whereby the wife will retain Property A, Property C and funds held in her account. The Public Trustee intends to sell Property A to meet the wife's liabilities and to provide secure living conditions for her in the future.

87 The husband will retain Property B, his interest in Property F, his superannuation entitlements and bank account. The husband will have a home to occupy and some funds to rely upon. He may continue to occupy the property currently occupied by him or alternatively he will have a home at Property B. The wife's needs will be met by the proceeds of sale of Property A.

88 A division of assets in this way will provide for the parties needs and their accommodation arrangements in the future.

THE PROPOSED ORDERS

89 Subject to hearing from counsel the orders I propose to make are as follows:

Upon the Court noting that:

(a)"the wife" [Mrs Dimitrov] born in 1965 and for the purposes of this minute refers to the Public Trustee in his capacity as the wife’s plenary administrator and case guardian.

(b)"the husband" is [Mr Dimitrov] born in 1958.

(c)"the parties" refers to the husband and the wife.

(d)"[Property A]" means [description omitted].

(e)"[Property B]" means [description omitted].

(f)"[Property C]" means [description omitted].

(g)"the Act" refers to the Family Law Act 1975 (Cth).

As and by way of property settlement and with the intention of finally determining the parties’ financial relationship pursuant to sections 79 and 81 of the Act:

1Immediately upon the making of these orders:

(a)the right, title and interest of the wife in [Property B] vest in the husband;

(b)the right, title and interest of the husband in [Property A] vest in the wife; and

(c)the right, title and interest of the husband in [Property C] (if any) vest in the wife.

2For the purposes of implementing the preceding order:

(a)the parties will forthwith do all acts and things, including signing all documents, necessary to transfer the title of:

(i)[Property B] into the husband’s sole name; and

(ii)[Property A] into the wife’s sole name;

(b)without derogating from the preceding sub-paragraph, the wife will be responsible for the preparation of all documents required to transfer title of the said properties into the sole names of the husband and the wife respectively;

(c)if and to the extent required by Landgate, pursuant to section 106A of the Act, the Principal Registrar or a Registrar of the Family Court of Western Australia at Perth is hereby appointed to execute all documents and/or instruments on behalf of the husband so as to effect the transfer of title of [Property B] and [Property A] including but not limited to:

(i)transfer of land document; and

(ii)any other documents and/ or authorities required to implement these orders; and

(d)the wife is at liberty to apply for alternative and/or consequential orders as might be required to give effect to the intention of orders 1 and 2(a) above.

3Pending transfer of title of [Property B] and [Property A], the husband be restrained and an injunction be granted restraining him from encumbering and/or further encumbering and/ or charging title of [Property B] and/ or [Property A].

4Unless otherwise provided for in these orders:

(a)the wife pay and forever indemnify the husband with respect to:

(i)any costs, demands, expenses and/ or outgoings associated with or in connection to [Property A] and/ or [Property C] including but not limited to:

(a) rates and utilities;

(b) fines and/ or other penalties;

(c) costs and expenses associated with any notice/s issued pursuant to the Health (Miscellaneous Provisions) Act 1911 or associated legislation; and

(d) any incidence of capital gains tax;

(ii)any other liabilities, debts and/ or demands she has incurred in her sole name;

(b)the husband pay and forever indemnify the wife with respect to:

(i)any costs, demands, expenses and/ or outgoings associated with or in connection to [Property B] including but not limited to:

(a) rates and utilities

(b) fines and/ or other penalties,

(c) costs and expenses associated with any notice/s issued pursuant to the Health (Miscellaneous Provisions) Act 1911 or associated legislation; and

(d) any incidence of capital gains tax;

(ii)any other liabilities, debts and/or demands he has incurred in his sole name.

5The husband forthwith do all acts and things, including signing all documents, necessary to transfer and/ or assign to the wife his right, title and interest (if any) in the following:

(a)all of the wife’s personal belongings including furniture and contents, personal apparel, goods and documents; and

(b)all monies held in any accounts in the wife’s name in any banking or other financial institution including any funds held on her behalf in the Public Trustee Common Account.

6The wife forthwith do all acts and things, including signing all documents, necessary to transfer and/ or assign to the husband her right, title and interest (if any) in the following:

(a)all of the husband’s personal belongings including furniture and contents, personal apparel, goods and documents; and

(b)all monies held in any accounts in the husband’s name in any banking or other financial institution; and

(c)the husband’s:

(i)superannuation entitlements with [Superannuation Fund A]; and

(ii)inheritance from his late mother’s estate.

7Unless otherwise specified in these orders and except for the purposes of enforcing payment of any money due under these or subsequent orders, each party be solely:

(a)entitled to the exclusion of the other to all property in the possession of such party; and

(b)liable for and indemnify the other against any liability:

(i)in the indemnifying party’s name; and/ or

(ii)encumbering any item of property to which that party is entitled pursuant to these orders.

8To the extent not already provided for in these orders, each party:

(a)do all acts and things, including signing all documents, necessary to give effect to these orders; and

(b)have liberty to apply at short notice to re-list the proceedings for any reason arising out of the operation of these orders including implementing and giving full force and effect to these orders.

9The proceedings otherwise be dismissed.

10All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.

11In relation to material tendered as an exhibit into evidence in these proceedings:

(a)all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today’s date;

(b)all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits;

(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.

12In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 10 and 11 above do not apply.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM

Associate

23 DECEMBER 2021