Eltham and Eltham

FAMILY COURT OF AUSTRALIA

ELTHAM & ELTHAM

[2007] FamCA 657

FAMILY LAW - CHILDREN – Relocation from Melbourne to Western Australia – Family Law (Shared Parenting Responsibility) Act 2006 (Cth) – Benefit to child of meaningful relationship with both parents – Presumption rebutted on basis of both family violence and best interests principles – Equal shared time with child - Admission of taped telephone conversations involving a child
FAMILY LAW - PROPERTY – Lottery win, inheritance – Contribution issues arising out of party’s depressive illness and behaviour.

Family Law Act 1975 (Cth)
Family Law (Shared Parenting Responsibility) Act 2006 (Cth)

AMS v AIF 199 CLR 160, (1999) FLC 92-852, 24 Fam LR 756
Anastasio (1981) FLC 91-093
Bonnici (1992) FLC 92-272; 15 Fam LR 138
Cowling and Cowling (1998) FLC 92-801; 22 Fam LR 776
Godfrey and Sanders (2007) FamCA 102
Goode and Goode (2006) FLC 93-286; 36 Fam LR 422
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143; 30 Fam LR 355
Mallett v Mallett 156 CLR 605; (1984) FLC 91-507; 9 Fam LR 449
Zyk (1995) FLC 92-644; 19 Fam LR 797

APPLICANT:

MRS ELTHAM

RESPONDENT:

MR ELTHAM

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLF

1506

2006

DATE DELIVERED:

27 June 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATES:

8, 9, 10, 11, 12 January 2007, 19, 20, 21 February 2007, 1, 9 March 2007, 23, 24 April 2007, 3 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR ST JOHN SC

SOLICITOR FOR THE APPLICANT:

CAROLINE COUNSEL FAMILY LAWYERS

COUNSEL FOR THE RESPONDENT:

MS NIKOU SC WITH MR MORT

SOLICITOR FOR THE RESPONDENT:

MASON SIER TURNBULL

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

MR CROZIER-DURHAM

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

T J MULVANY & CO

Orders

That all existing parenting orders be discharged.
That the child S born in June 1999 live with the husband and the wife on a week-about basis from 3.00 pm on Friday to 3.00 pm on the following Friday commencing on the first Friday after the date of these orders with the parent who has not had the care of the child in the days prior to that Friday.
That the Independent Children’s Lawyer explain the terms of these orders to the child and each party be restrained from talking to the child about the orders until the Independent Children’s Lawyer has undertaken that task.
That the order for the appointment of the Independent Children’s Lawyer be discharged as and from 1 June 2008.
That unless the parties agree otherwise, during all school term holidays and the long summer holidays, the child continue to live with each of his parents on the week-about basis.
That for the purposes of the collection and delivery of the child, each parent or their nominee collect the child from school on the Friday if that is a school day or from the front of the home of the parent with whom the child has been living up until 3 pm that day if it is not a school day.
That unless otherwise agreed, paragraphs 2 and 5 of these orders are suspended during the following periods and during those suspended periods, the provisions as set out in this paragraph shall apply:
(a)On Fathers’ Day in each year, the child shall spend time with the husband from 9am until 6 pm on Fathers’ Day;
(b)On Mothers’ Day in each year, the child shall spend time with the wife from 9am until 6 pm on Mothers’ Day;
(c)During the period in each year from 3 pm on 24 December until 3 pm on 26 December and during that period:
(i)the child spend time with the wife from 3pm on 24 December until 3 pm on 25 December in each odd-numbered year and from 3 pm on 25 December until 3pm on 26 December in each even-numbered year; and
(ii)the child spend time with the husband from 3 pm on 25 December until 3 pm on 26 December in each odd-numbered year and from 3 pm on 24 December until 3 pm on 25 December in each even-numbered year.
(d)on the wife’s birthday during the period from 3pm to 6 pm, the child spend time with the wife during that period;
(e)on the husband’s birthday during the period from 3 pm to 6 pm, the child spend time with the husband during that period;
(f)on the child’s birthday during the period from 3 pm to 6 pm during which time, the child shall spend time with the parent with whom he is not living during that week.
8.That each parent be at liberty to communicate with the child by telephone on the Sunday, Tuesday and Thursday nights between 7 pm and 7.30 pm when the child is not in that parent’s care and the resident parent shall do all things necessary to facilitate such communication. During any such communication, the resident parent is restrained from remaining within the vicinity and hearing of the child.
9.That the wife be solely responsible for the following decisions about the following major long-term issues relating to the child:
(a)the appointment of the child’s general medical practitioner;
(b)the appointment of the child’s dental practitioner; and
(c)the appointment of any other health professional provided such appointment is first recommended by the child’s general medical practitioner or in the case of specialist dental treatment, the child’s dental practitioner.
That in the event that either the child’s school or general medical practitioner recommends that the child participate in a form of counselling, each party do all things necessary and sign any required document to give effect to such recommendation and each be responsible for one half of the necessary costs of such counselling.
That the wife be solely responsible for the appointment of and the attendances upon, a hairdresser for the child’s haircuts.
That unless otherwise agreed in writing, each parent be restrained from undertaking or giving permission for the child to undertake any form of body-piercing or body coloration including hair coloration.
For the purposes of paragraph 9, the wife advise the husband by email and hereafter keep him informed of the name and address of the relevant practitioners and give any necessary written instruction to the said practitioners that the husband is to use the professional services of the practitioners for the child and to provide any necessary information to each parent about the child’s medical and dental health and welfare.
That unless in an emergency or it is otherwise impracticable to do so, the husband and the wife attend the medical and dental practitioners referred to in paragraph 9 hereof.
That subject to paragraph 14 and to any other clearly expressed view by the child’s appointed medical or dental practitioner to the contrary, the husband only take the child to the said appointed practitioners.
For the purposes of paragraph 9, the husband and the wife each be responsible for one half of the net medical and dental expenses of the child.
That unless otherwise agreed, the child attend W Primary School until the completion of his primary education.
Subject to any direction of the principal of the child’s school to the contrary, either parent may attend and speak to and spend time with the child at the school during the week that the child spends with the other parent.
Each parent is at liberty to provide to the child’s school, a copy of these orders.
That for the purposes of the child’s secondary education, in default of agreement by 31 December 2007 as to the school to be attended, the parties attend a Family Relationships Centre or Relationships Australia for the purposes of a discussion as to their respective proposals and after such attendance, if there is no agreement, the husband be responsible for the decision as to which school the child shall attend provided that if the husband alone chooses a fee-paying private school, he shall pay all fees and uniforms but the expenses be otherwise shared equally.
For the purposes of all schooling of the child, each party be at liberty to communicate directly with the school about all issues of the educational health and welfare of the child and, subject to any dictate of the school to the contrary, each party be at liberty to attend any event, function or meeting at which parents of a child would normally be entitled to be present.
That each parent be restrained from hereafter enrolling the child in any extra-curricula activity of a sporting, art, craft or out-of-school educational nature unless there is consensus between both parents confirmed by email that both parents will:
(a)Regularly provide to the other parent all details as to the commitments required of both parents and the child;
(b)Agree on the costs of such activity and their respective contributions towards the costs; and
(c)Agree that they will ensure the attendance and participation of the child during the period of the time that the child lives with each of them.
That the husband and wife advise each other by telephone immediately upon becoming aware of any of the following in relation to the child:
(a)any illness or injury requiring a medical examination or medical consultation;
(b)any illness requiring the provision to the child of any medicine prescribed by a medical practitioner;
(c)any hospital attendance for examination, consultation or treatment;
(d)any proposed dental treatment;
(e)any proposed appointment with any other health professional, including all details as to the health or educational professional and the time of the attendance or appointment;
(f)any issue of concern raised with either parent by the child’s school relating to his education, welfare or behaviour.
That each party be responsible for issues of discipline of the child when he is in their care.
That each party forthwith do all things necessary and sign all required documents to enable a passport to issue in the name of the child and the original of such passport shall be retained by the husband.
In the event that either party desires to take the child out of the Commonwealth of Australia on a holiday, that parent shall give the other parent at least 28 days written notice of the intention to so travel including all details and itinerary and in the case of any travel with the wife, the husband make available the child’s passport for such travel.
That each party be and is hereby restrained from denigrating the other parent to or in the presence of the child.
That the husband continue to undergo such treatment as may be prescribed by Dr M or such other health professional recommended by Dr M or his successor.
That the husband forthwith authorize and direct Dr M or his successor (if any) to confirm in writing to the wife (if necessary at the expense of the wife) that the husband is complying with any prescribed treatment and the wife is at liberty to provide a copy of these orders to Dr M with a request that he confirm that the husband has so authorized Dr M.
That pursuant to section 65L of the Family Law Act, compliance by each party with these orders be supervised by a family consultant appointed by the Registry Manager or her nominee for the purposes of providing such assistance as the parties may reasonably require in respect of compliance with and the carrying out of these orders and for the purposes of section 62G(2), such supervision be not confidential. In the event that there are further proceedings between the parties, the family consultant so supervising these orders may give evidence accordingly of all discussions involving the parties.
That on or before 4 pm on 30 August 2007 (the due date), the husband pay:
(a)to the wife, $549,334.00 (the sum due to the wife); and
(b)to his solicitors, $40,000 on account of the wife’s share of potential tax arising from the matters set out hereafter.
That contemporaneously with the payment by the husband of the sum due to the wife and the wife’s share of any potential tax, the husband pay to his solicitors a further sum of $40,000 to be held on trust with the wife’s share of the tax on behalf of both parties for the purposes of paying any capital gains tax and income tax arising out of:
(a)dividends and interest earned on the share portfolio held with G Broker (the share portfolio);
(b)the sale of shares in the share portfolio by the husband to meet his obligations under these orders; and
(c)the transfer by O Pty Ltd of the Renault motor vehicle to the wife.
That from the total sum of $80,000 held on trust for the parties, the following be paid:
(a)the costs and expenses of the sale of shares in the share portfolio;
(b)the professional costs of a jointly appointed accountant to calculate the taxation liability arising out of the matters referred to in paragraph 32 hereof;
(c)the tax as assessed by the said accountant in the following proportions:
(i)60% to the husband; and
(ii)40% to the wife
In the event that after payment of all of the sums referred to in paragraph 33 hereof, there are funds left over, that balance shall be divided between the parties as follows:
(i)as to the husband, 60%; and
(ii)as to the wife, 40%.
Should there be a shortfall in respect of the obligations created by paragraph 33 hereof, each party shall contribute to that shortfall in the proportions as to 60% by the husband and 40% by the wife.
The payment of any taxation liability referred to in paragraphs 33 and 34 hereof shall be made upon receipt of the formal assessment notice in respect of the 2006/2007 financial year unless there is agreement between the parties in writing otherwise.
Contemporaneously with the payment of the sum due to the wife, the wife deliver up to the husband:
(i)a withdrawal of caveat registered number … in registrable form;
(ii)any necessary document, prepared at the expense of the husband, to relinquish any interest in the Eltham Family Trust;
(iii)any necessary document prepared at the expense of the husband, to transfer to the husband, any interest she may have in O Pty. Ltd.
That by 4 pm on 30 September 2007, the husband discharge mortgage numbered … to the Commonwealth Bank secured against the title to A property (the A property).
That the husband retain, and the wife relinquish any interest in, the A property.
That the husband indemnify and forever keep the wife indemnified in respect of any liability for or arising out of the following:
(a)the said mortgage to the Commonwealth Bank;
(b)the rates, taxes and outgoings of or with respect to the A property;
(c)the margin lending loan secured against the share portfolio;
(d)the Eltham Family Trust;
(e)O Pty Ltd.; and
(f)Save as provided in paragraph 32 (c) of these orders, any personal income tax liability arising for the wife as a result of the actions of, or distribution of capital or income by, the Eltham Family Trust and O Pty Ltd.
That by 4 pm on 31 August 2007, the husband pay to L College the sum of $10,800 on account of outstanding fees for M and the husband indemnify the wife up to the sum of $10,800 in relation to any action brought by or on behalf of L College in respect of the said fees.
That the husband and the wife forthwith do all things required and sign any necessary documents to close the jointly held accounts with any credit balance at the time of closure and thereupon divide the balances equally in respect of:
(a)the Members Equity Account number … ; and
(b)the ANZ Bank account number … .
That the husband and the wife forthwith do all acts and things required and sign any necessary document to transfer to the wife at the expense of the wife, the interest of O Pty Ltd in the Renault Megane motor vehicle in the possession of the wife.
Save as otherwise provided in these orders, each party retain and the other relinquish any interest in, all other property including any interest in any superannuation fund, in the possession of that party as at the date of these orders.
In the event that the husband fails to make the payment of the sum due to the wife by the due date, the husband do all things required and sign any necessary document to sell the A property by public auction upon such terms and conditions as may be agreed and failing agreement, on terms and conditions as determined by the nominee of the President of the Real Estate Institute of Victoria and upon the settlement of the sale of the A property, the proceeds be applied as follows:
(a)first, to pay all costs, commissions and expenses of the said sale;
(b)secondly, to discharge any mortgages and encumbrances affecting the A property;
(c)thirdly, to pay to the wife so much as is then outstanding and due to her under these orders together with interest as prescribed by the Family Law Rules 2004 calculated from 31 August 2007 until the payment is made to the wife; and
(d)fourthly, to the husband, the balance.
That save as to any application for costs, all applications of the parties are dismissed and removed from the list of cases awaiting a hearing.
In the event that any application is made for costs, the matter be listed on a date to be fixed before the Honourable Justice Cronin.
All documents produced pursuant to any subpoena may be returned to the recipient of the subpoena.

IT IS CERTIFIED

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel, including senior counsel.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF1506 of 2006

MRS ELTHAM

Applicant

And

MR ELTHAM

Respondent

REASONS FOR JUDGMENT

This is a dispute about parenting orders and the division of property.

ISSUES

The parenting orders relate to S was born in June 1999. S, as he has been called throughout the proceedings, is almost eight years of age. His mother wishes to live in a small town in Western Australia, north of Perth. Her proposal is that the child goes with her. Failing that, she wishes to look after the child on a full-time basis in Melbourne.
The child’s father is strongly opposed to the Western Australia move. He seeks that the present arrangement continue on a week-about basis.
An Independent Children’s Lawyer participated throughout.
The property proceedings involved contribution questions about the treatment of an inheritance of the husband and the proceeds of a lottery win. The wife also argued that she made a greater contribution because of the depressive illness of the husband.
The Western Australia attraction for the wife arises because that is where her fiancé lives and works. Her family is also from Western Australia although some hours away from where she proposed to live.
The husband and wife also lived and worked in Western Australia prior to their move to Victoria in 1997.

The proceedings

The applications

The wife filed her application on 10 May 2006 and amended it on 22 November 2006. She sought a long list of orders, including for permission for the child to live in Western Australia and that he spend school holidays at the end of each term in Victoria with his father and one half of the long summer holidays. She sought a variety of orders in relation to education matters and for each party to keep the other informed about medical and welfare issues.
On 8 January 2007, the wife provided a list of orders that she sought[1] which I have annexed to this judgment.
[1] Exhibit W1
The husband filed a response on 18 May 2006 and amended it on 22 November 2006 seeking orders that there be a week-about sharing of the child and various orders about property. He desired to keep the home and most of the shares.

On 8 January 2007 the husband provided a set of proposed orders which were more comprehensive although not dealing with property issues which were still being formulated. Because of their length I have annexed them to these reasons for judgment. On the final day of the hearing, the husband provided precise details of the property orders he sought and those are added to the annexure.
The Independent Children’s Lawyer opposed the wife taking the child to Western Australia. He proposed that the child live with husband and wife on a week-about basis. That position did not change throughout the proceedings.
Notwithstanding what I have just said about the husband’s position, in final address, his counsel resiled from the opening position because, in her words, with the passage of time, the husband’s case had “strengthened” and there was a “different lie of the land”. This brought a strong protest from counsel for the wife saying that this was a new case and one which had not been addressed by his client. I rejected the suggestion that the proceedings should be adjourned and made clear that I was “at large” in any parenting proceedings and I intended to determine the matter on the evidence presented.
I do not accept that it is in the child’s best interests for the husband to care for S for a greater period than the wife.
The Independent Children’s Lawyer did not support the new position of the husband.

Delays

Unfortunately, the proceedings had to be conducted over a number of different periods between January 2007 and May 2007.
On 5 September 2006 when the matter was before Guest J, his Honour expected the hearing to take three days.
On that same day before Guest J, the parties consented to a week-about regime for the child.
In December 2006, the matter came before Bennett J. Her Honour was told that the case needed 5 days not 3 and the proceedings had to be adjourned until early January 2007. The estimate of 5 days was at best, optimistic, having regard to the number of issues and witnesses and the cross-examination that was ultimately undertaken.
The hearing was also hampered because the family report writer, Ms B, fell seriously ill before giving evidence. Although she had done extensive interviews and reports, she was replaced with psychologist Mr P.
Mr P’s instructions were confined to the question of the child’s relocation to Perth. That overlooked what arrangement should follow if the child did not go.
The substitution of Mr P for Ms B also gave rise to the question of what I should do with and the weight (if any) I should give to the affidavit of Ms B. Ms B was sent a series of questions by the solicitors for the husband. Those were clearly “loaded” to address issues favourable to the husband. The wife took strong exception to what she claimed was an “abuse of the process” of the court. This evidence has been factored into my deliberation notwithstanding the wife’s protestation but I have ignored the responses of Ms B to the questions.
What Ms B opined however was:
Research on the impact of relocation and the adjustment of children is limited in the area of children of separated parents, focusing mainly on relocation of children of non-separated families as generally being negative. However, the general conclusion to single parent relocation contains evidence that ranges from distress, anxiety, litigation and significantly decreased contact between the children and the remaining parent, and in some cases the severing of the relationship. The disruption to significant attachment relationships should be a major consideration in determination of relocation applications.
Pursuant to orders I made, Mr P did not have access to the B reports.
Mr P’s overall philosophical view was:
It is in this context that any decision about [the child] needs to be considered. Whilst a testing of evidence may reveal important information that will weigh heavily when making a decision, the one conclusion that I can draw confidently is that a move by [the child] to Western Australia will change his relationship with his father very significantly, will minimize his father’s contribution in his life, and will substantially marginalise his father. Such a move will very actively prevent any kind of significant, meaningful involvement in [the child’s] life by [the father], it will very much relegate him to a status of a recreational parent, and will reduce his time spent with his father to, at the very most, holiday contact. Whilst this is an inevitability in all relocation matters, there is also a level of antipathy, acrimony and very genuine dislike that permeates through this matter, and [the mother] in particular conveys a level of hostility and anger towards [the father] for his behaviour over the last twelve months which is completely devoid of any self reflection. Whereas in other circumstances, a relocation might be supported on the basis that there is an open, welcoming, positive and encouraging relationship between the move away parent and the non-move away parent, this is far from the case. It is difficult to foresee how in the current circumstances, that [the mother] would encourage in any kind of positive manner, a relationship between [the child] and his father, and especially so if her past behaviour and her move to Western Australia is any indication. Whilst a move of such distance might be good for [the mother], it is difficult to foresee how such a move could possibly be of benefit to [the child] in the sense of it compromising his relationship with his father. At least a decision for [the child] to remain in Melbourne encourages a relationship with both parents, provides the physical opportunity for them to see each other on a regular basis, whilst at the same time maintaining existing networks and supports, at least until a time that he is older and he can make his own decisions.
Thus, there is a very strong resistance by the social scientists to the child’s relocation to Perth.
The case also raised the question of whether there has been a change in the law relating to relocation of children subsequent to the Shared Parenting Responsibility Act 2006 amendments to the Family Law Act1975 (Cth) (“the Act”).
As Kay J in Godfrey and Sanders[2]:
Relocation cases are notoriously difficult. Both parties have valid claims of right.
[2] [2007] FamCA 102

The husband and the wife

The husband works in administrative positions. He is 45 years of age. He suffers from a major depressive illness which is currently controlled by Zoloft medication. He periodically visits a psychiatrist for therapy. This marriage was his first and S is his only child. He is not living with any other person although he does have a relationship with Ms R. He has a Bachelor of Engineering and Masters of Science Degree.
The wife is not currently employed but has a history of regular employment and involvement in business. Her professed position is a desire to look after the child.
The wife enjoys good health. This marriage is her second. Her former husband, Mr W lives in Perth and was a witness in these proceedings. There is also a child of her first marriage, M who is now 18 years of age. M has just completed his secondary education. He lived with the parties for a portion of the marriage.
The wife is currently engaged to Mr C.

the relationship

The parties met in Perth in 1996 and commenced living together at the end of that year.
In the period of time between meeting and commencing cohabitation, the wife bought a “[takeaway]” shop. She already owned a home but it was subject to a mortgage.
The husband was a student pursuing postgraduate studies at the University. Whilst completing the studies, the wife was the main provider of the income for the couple.
About six months after commencing to live together, the husband moved to Melbourne for employment reasons. The wife remained in Perth to sell her home and the takeaway shop.

The marriage

The parties married in Melbourne on 8 August 1998.

The separation

I propose to look at separation in two contexts:
(a)First, when each party asserted that the marriage was at an end; and
(b)Secondly, the wife’s departure from Melbourne to Perth.
Without any doubt, the relationship came to a tumultuous end in March 2006.
The wife said[3]:
I returned from a visit to Perth on 16 March 2006. I had told the husband our relationship was over some time in February, but reiterated this on my return from Perth. As a result of our discussion after my return, the husband moved out of the marital home and went to live with his sister, [Ms E]. At this time there was a Japanese student staying in the marital home with us. When she left our home, the husband and I agreed that he could return to live in the spare room. This occurred on or before 12 April 2006
…
I had commenced packing boxes to move to Perth in mid-March. The husband was well aware of my intention to relocate to Perth.
[3] Paragraph 18 affidavit filed 22 November 2006.
I am not entirely sure when the wife formed the view that the husband was well aware of her intention to move to Perth.
Her counsel in his opening address said that the wife told the husband in mid-March that she intended to go to Western Australia with the child and that the marriage was over. When cross-examined, the wife maintained that she made the decision in February.
In January 2006, the parties won over $1 million in Tattslotto. The husband’s evidence about the subsequent months was:
After discovering our remarkable win, the wife and I spent a considerable amount of time planning what the future may hold for us. We purchased a framed map of the world so that we could mark where we wanted to go. The wife and I paid off all our bank loans and other liabilities as previously deposed. We organised a trip to the Gold Coast and the Whitsundays to celebrate our upcoming ten year anniversary. We paid a deposit of $3000 for this trip. We purchased rings for each other to mark the occasion. We also planned to travel to Hong Kong for Christmas 2006, the United States of America in mid-2007, to Vietnam in mid-2008 and France in mid-2009.
The wife filed an affidavit on 30 November 2006 responding to the husband’s affidavit but made no reference to what the husband said.
In an email dated 21 February 2006, both the wife and the husband appeared to be negotiating their proposed China tour. The wife made the last transmission with:
Where are you?
What are you doing?
I miss you
In early February 2006, the parties jointly inquired about adopting a child and paid a fee for an “application pack” and sought advice about the adoption process from their doctor. The doctor was prepared to act as their referee.
The wife went to Perth a number of times during this period. She and the child were in Perth for about eight days in early March 2006 and just after returning, the husband said that on Sunday 19 March 2006:
I was working at the Commonwealth Games when I received a call on my mobile from the wife. The wife yelled at me “You have had an affair”. I replied “That is not true”. The wife to me (sic) “I’m divorcing you and I’m taking [the child]”. I was in shock and I wanted to talk to her about what she was saying but she hung up.
The chronological sequence of events is important.
It transpires that on 27 February 2006, whilst in Perth, the wife stayed with the sister of her now fiancé. I accept that by accident, she spoke to Mr C on the telephone whilst at his sister’s home. The wife and Mr C had been friends in their youth until he went to New Zealand in 1986. His marriage relationship had ended and in the telephone call, they exchanged details.
Over the following days, there were a number of telephone calls to Mr C at various times. The wife said they “possibly” spoke about the relationship. Mr C’s evidence was that they spoke “about the weather and getting back together” but that in any event, in the phone calls he said that they “fell back in love”.
On 9 March 2006, the wife and Mr C met personally for the first time for many years. That visit was planned. The husband thought the wife was going to be with her ill father and was oblivious to the new relationship. The child was introduced to Mr C and met his children.
I find that on 19 March 2006, the wife advised the husband that she was ending the marriage. As for the assertion of an affair by the husband, apart from his denial, there was no evidence led about that. I am satisfied that the husband had not anticipated the ending of the marriage. I do not accept that the wife told the husband in February that the relationship was finished.
After the telephone conversation on 19 March 2006, the wife went to Western Australia for some days and the husband moved to live with his sister. Some days after the wife returned to Melbourne, the husband and wife agreed that he could return to the house but they lived apart under the one roof.
Over the ensuing month, the wife was predominately the person caring for the child and managing the domestic chores of the household leading up to her departure in May.
It was the wife’s departure which commenced what can only now be described as particularly acrimonious litigation.

The second phase of the separation process.

Over the period between 19 March 2006 and 11 May 2006 the wife, her son M and the child went to Perth for some of the time and the husband and wife were also living apart at other times. The wife denied that the husband did the household chores. I accept the wife’s version on that issue. However, in the evenings, the husband did actively parent the child on most, if not all, weekdays but it was to the wife that the child went at 8.30 pm to be put to bed in her bedroom.
The husband cared for the child alone overnight on 20 April 2006 and for the period between 28 April 2006 and 1 May 2006.
During the period together under the one roof, although the level of communication was caustic, it had not reached the point of complete breakdown. On 20 April 2006 the wife emailed the husband saying:
I do not want to be with you I am not interested in fighting with you I just want to leave I do not want to be in the house, this town another minute longer than I have to
If you continue this shit I will just leave and find somewhere else to live whilst [M] finishes his schooling
All I want from you is a 50/50 split and to share [the child]
I do not accept that the wife was saying that she was leaving immediately. The last email suggests that she might intend to leave “town” when M ended his schooling but that was nine months away.
Notwithstanding what the wife was saying and what the husband understood at this time, I find that the wife was pursuing the relationship with Mr C and that the husband was unaware of it.
On 31 March 2006 the wife paid the sum of $1064 on a credit card to solicitors Watts McCray on behalf of Mr C. When questioned about this, she said it was purely a loan.
On 28 March 2006, the wife bought a car from a dealer at M in Western Australia for $56,320 giving a post office box address in B in Western Australia as her address. The purchase order shows that the expected delivery date was 13 April 2006. The wife subsequently insured the car showing Mr C as the alternate driver and listed Mr C’s mother as another. The insurance document showed the usual garaging was N. When questioned about this exercise, the wife said that by 28 March 2006 she knew she wanted to reside with Mr C. The husband was aware of the car purchase but I find that he did not know of the finer details of the transaction in so far as they related to Mr C. The husband understood that with the wife’s father’s illness, she would need a car when she went to Western Australia. He agreed for the car dealer to draw on his Members Equity credit card for the purchase.
On 4 May 2006, the wife opened a Bendigo Bank joint account with Mr C using a deposit of $160.
The evidence in relation to the bank account, the motor car and the payment of the legal fees was put to the wife on the basis that she had met up with and formed an association with Mr C much earlier than 9 March 2006 as she alleged.
In a very short space of time, the wife had determined to end the marriage and was sufficiently confident of being able to move to Western Australia with Mr C that she undertook the steps to which I have just referred.
Thus at this time, I find that the wife had not mentioned a permanent move to Perth nor that the husband could expect anything other than a significant involvement in the child’s life.
On 8 May 2006, the wife handed the husband a letter from her solicitor asserting the end of the relationship. On its face, it was sensible. As it should, it suggested discussion should ensue.
The wife’s version of what occurred was that because the husband did not open letters as a result of his depressive illness, she handed it to him. She said he “flew into a rage” and told her she was about to be served with legal process from his lawyers.
The husband’s version was that he was sitting with the child watching television when the wife handed him the letter along with a school invoice for M’s school fees. The husband said the wife used language of the type she in turn claimed he used to abuse her during their relationship. He said he tried to reason with her but she called the police.
I make no finding about whether the attendance of the police was justified but it seems that as a result, the household was calmed and the police left.
The child witnessed his parent’s behaviour and then the attendance of the police and that would have been confusing and frightening for him.
Until this point, the relationship had been calm. On the wife’s evidence about the husband’s mental state as she alleged it to be, the service of the letter, albeit a polite one, along with the school account, was provocative. Even if the wife did not expect a hostile reaction, to “serve” the husband in the presence of the child was inappropriate. In so far as the wife was the initiator of the sequence of events, I am critical of her as a parent.
On the following day, 9 May 2006, a letter from the wife’s lawyers was sent to the husband’s lawyers. The proposed permanent move to Perth was raised for the first time. That letter enclosed a copy of the Form 2 application to be filed in this Court the following day. Order 8 of the application sought:
That the wife and child relocate to Perth.
Significantly, the wife’s view was that contact time between husband and the child had to be supervised. The basis of that concern was that on 7 May 2006, two days earlier, the wife had found the husband’s computer entry which became known in the proceedings as a “suicide note”. There was also a draft will and some other letters found.
If the wife was concerned about the husband’s mental state, it is another factor which concerns me about both her parenting and her expressed fears in the action of hand-delivering the 8 May letter in front of the child.
Paragraph 9 of the wife’s affidavit in support of her first interim application alleged “frequent assaults” during the course of the marriage but more importantly that:
The husband’s emotional state is such that I am concerned that our son should not be with him unsupervised.
The proceedings did not come before the Court until 13 June 2006. In fairness to the wife, an application for an abridgment of time was sought but refused by a registrar.
Having been refused what would have been an urgent hearing, her lawyers sent a letter saying that she did not feel safe in the former matrimonial home and had “moved out” with the child. The letter went on to say that she would fly to Perth on 16 May 2006 but would return on 27 June 2006. That message was reinforced the same day with another statement that the wife would return.
The wife insisted that any time between the husband and the child be supervised. She nominated the husband’s sister Ms E. Ms E became a significant witness in these proceedings.

The wife’s lawyer, no doubt conscious of the refusal by the Court to give an abridgment of time, rather boldly ended the second letter stating that unless agreement was reached on the supervision sought by the wife, she “reserved the right to make an immediate interim ex parte application”. That suggests that the wife was not about to take flight.
On 12 May 2006, the wife’s solicitor reiterated that the wife would return on 27 June from Perth. His view was that the wife’s residence application would succeed but offered as an alternative to a “contest”, that everyone seek a private family report. On the same day, the wife’s solicitor reiterated that the wife would be going to Perth “in the short term”.
The husband’s evidence is that on Friday 12 May 2006, whilst letters between lawyers were being exchanged, the wife arrived at the home with the child. He said that the wife asked to talk and they did so, leaving the child playing on a computer. According to the husband, the wife asked why she and the child could not go and live in Perth. There seemed to be common agreement about the conversation thus far but the wife said that the husband told her she would never have Perth. In her evidence, the wife added to her affidavit by saying:
I thought he would kill [the child] before he would let me have him.
She added that the husband had frequently said he would kill himself and there was at that time, an issue on the news of a man killing his three boys and that made her fearful as well.
Needless to say, no agreement was reached between the parties and the wife left the house, taking the child.
Notwithstanding her lawyer’s statement that she was leaving on 16 May 2006 and returning on 27 June 2006, the wife said her lawyer “advised” her to leave as soon as possible and she organised a flight with the child to Perth and left.
The wife’s counsel in opening address, described all of this as “not the greatest decision” to be made but it had to be viewed in the context of:
(a)the husband “going off” on an aggressive tangent; and
(b)the husband’s ominous comment (at the home on 12 May)
and that therefore “flight” was the best option. He said it was not a reckless response.
I do not accept that the wife’s fear was genuine. This “flight” has to be seen in the context of all of the matters I have mentioned in relation to the development of her new relationship in Perth which was then still unknown to the husband, her behaviour as I have found it on the night of 8 May 2006 and her apparent willingness to discuss the matter with the husband at the home alone on 12 May 2006.
After the wife flew to Perth in May 2006, there was correspondence between solicitors requesting details as to the whereabouts of the child. The wife’s view was that she had already told the husband where she was staying. She said she told him by telephone. I do not accept that.
The child was enrolled at the N Primary School in Western Australia apparently around 15 May 2006. According to the enrolment form Exhibit H10, he was to start on 16 May 2006. That is consistent with the flight details. The enrolment form sought details of the father of the child. Exhibit H10 is confusing on its face. The question about a mailing address has beside it the words “Will not provide” but there is also an arrow pointing upwards to the matrimonial home address in Melbourne. Under the words “Will not provide” is what appears to be an arrow pointing to an email address. The wife acknowledged that the words “Will not provide” which incidentally had two exclamations marks beside them were in her handwriting. In cross-examination, she acknowledged that when the initial enrolment form was completed, no details about the husband were there. She thought that she inserted those details on the form on 16 June, a month after enrolling the child, when she returned to Perth pursuant to the orders of this Court. She said that she initially enrolled the child without the details and advised the school that she was fearful of the husband. She said she was told by the school that she needed a court order if the school was not to have any participation with the husband but she added that she was advised by her counsel that what she had done was not fair and as a result, she went back to Perth and made the details available.
It was put to the wife that what she was endeavouring to do was to the hide herself and the child so that there was no prospect that the school could let information out that might enable the husband to find out her whereabouts. She denied that saying that she was fearful that the husband might just turn up and take the child away. She added that both she and the child were fearful and that the fears were “very real”.
I do not accept that the wife was frightened for her safety although I accept it is conceivable that she was concerned that the husband might come and take the child back to Melbourne. I do not accept that there was any evidence of, nor any basis for, any fear by the child of his father.
As for the husband’s email address, the wife acknowledged that she had the details in her diary but would have had to have looked them up. Had the wife simply vanished, there was sufficient detail on the enrolment form that would have traced her so there is no question about her trying to flee the jurisdiction. The more significant issue is her desire to exclude the child from the husband’s life. Without the husband’s name on the enrolment form, even had the husband known where the child was attending school, he would not have been able to access information about progress.
Accordingly, I find that the wife’s intention was to unilaterally reduce the involvement in the child’s life.

The parenting of the child until separation

The wife’s view was that she had been the primary caregiver for the child from the day that he was born. She pointed to the fact that the husband worked long hours and his depression prevented him from any significant involvement. In her view, even when she was working, she fulfilled not only the domestic chores but the significant role each day in caring for the child as he grew. When the child commenced school, she said that she:
·   got him ready whilst the husband remained in bed;
·   took the child to school on her way to work;
·   organised and attended all of the extra curricular activities for the child and if the husband attended which she said was infrequent, he would often not participate; and
·   was responsible for discipline issues because the husband would give in to the child if he misbehaved.
In contrast to the view of the wife, the husband said that he was responsible for the child’s daily care during the time he was at home. He said he:
·   prepared him for school;
·   gave him breakfast;
·   took him to and collected him from school;
·   helped him with his homework.
The husband took some time to concede that he worked long hours and had less time to devote to the child than did the wife. Whilst that changed at the end of the relationship, it was quite apparent that the wife fulfilled the greater caring role during the early years of the child’s life.
The husband said that prior to the wife going to Perth in early 2006, he was involved not only as spectator but as an administrator in some of the child’s varied interests. He said that he was the co-ordinator for his son’s athletics club and the registration administrator for the soccer that the child played.
The husband said that before commencing primary school, the child was in day care because of the respective work commitments of the parties.
The husband said that subsequent to 2004, he had a greater role in the child’s life and particularly after September 2005 when the wife was involved in the parties’ business, he took on more domestic chores.
It is difficult to make an assessment of just who played what role during the period up to separation however I accept the wife’s version and find that she had the greater role in not only organising the child’s life but also the activities in which he participated. That is not to say that I find the husband did not contribute. I am fortified in this view by the evidence of the husband’s sister who was an objective and balanced witness. When cross-examined, Ms E readily acknowledged that although both parties did domestic chores, the wife did the majority of them and that the child would look more to his mother than he would to his father to have his needs fulfilled. The husband was defensive about the distinction but he did acknowledge a greater role by the wife in relation to the child. His view was there was minimal difference. I do not accept that.
From 2004 onwards, the husband acknowledged incidents which point to the fact that the wife was still caring for the child in a greater way than he was. He maintained that even though he was ill, he still fulfilled his role in the care of the child. I accept the wife’s version and find the wife’s role was as described by Ms E to be greater than that of the husband.

The husband’s depression and behaviour

As a result of the husband’s major depressive illness and his consequent behaviour, the wife claimed that her parenting and general contributory roles were made so much more difficult.
The husband had suffered from severe depression for many years and had been under the care of a psychiatrist for at least 10 years. In other words, his depression affected him during the entire relationship.
The wife referred to a number of incidents which are set out in paragraph 17 of her affidavit filed 22 November 2006. Many of them were not the subject of any cross-examination. Some of them go back to the very early part of the relationship before the birth of the child. Apart from those incidents to which I now specifically turn, I say that the matters described are more indicative of the way in which the parties lived. That is not to say that they are acceptable or excusable but rather that, having heard all of the evidence, I am satisfied that this was a tempestuous household and it was not a one-sided problem. I shall refer to that again below.
The first incident that warrants consideration however is the one that the wife says occurred in 1999. The wife’s version was that the husband said that he could not cope with M living in their home and insisted that M be returned to Western Australia to live with his father. At this time, the wife was pregnant with the child. She said that she agreed to the husband’s request and after dropping M at the airport and returning home, she was upset. She said that the husband’s response to her being upset was that the only way they could “cope” would be if they died together.
The husband had a very different view of this incident. His version was that the return of M to Perth was initiated by the wife who put M on a plane back to Perth “in the middle of the night” but then changed her mind and that he, the husband, had to negotiate for M to come back to Melbourne.
M’s father, Mr W, said that whilst his relationship with the wife was “reasonably pleasant”, there was a time where he had to deal with the husband to whom it was easier to talk. He was not specific as to when this occurred but said that the wife did not want to deal with him and that she sent a letter to him requesting that any discussion was to be held with the husband. Despite the lack of time certainty, this supports the husband’s view of what happened to get M back.
In the light of a number of comments made by the husband over the years, I accept that he probably did say something along the lines of what the wife alleged. However, as M was to be returned to Melbourne, it is hard to accept that the wife was concerned about the husband’s comment. Accordingly, I have placed no weight on that incident.
The wife refers to a number of incidents in which the husband behaved in a very unusual way. On at least one occasion, the wife found the husband under his bed and on other occasions, lying either on or under a doona refusing to talk to anyone for hours. On more than one other occasion, the husband simply went missing for either hours or days.
She alleged that he would pace up and down. According to the wife, other indicators of his incapacity to cope with daily life as a result of his depression included his poor memory, losing things, a refusal to open envelopes, unwillingness to drive a motor car and a need for her to look after his medication.
The wife said that the husband used words like “this world is not for me” during bouts of depression and that during one period of their several short separations, she was persuaded by Ms E to speak to the husband as he had said that he would kill himself if she did not return to him.

The Huntington’s scare

In about the middle of 2004, the husband became ill. It was thought that he had Huntington’s Disease which is a terminal degenerative congenital nervous disease. It took some weeks for the results to show that he did not have it but the stress during that period of time was no doubt enormous.
The consequent depression triggered by the Huntington’s scare and which lasted long after the husband was cleared of having the disease, gave rise to his hospitalisation in early 2005.
The wife’s case was that he was hospitalised because he was suicidal.
The husband’s version was that there was a need to determine his correct medication.
Dr M was and is still, the husband’s treating psychiatrist. He was shown the Clinical note[4] which refers to the hospitalisation based on suicide ideation. Dr M confirmed that he wrote the note. He said he did so to set the “scene” for the hospital staff. He said it would have been a mistake to have underestimated the suicide risk but in his view, it was more to monitor the effects of the change in medication. The husband was not compulsorily detained in the hospital.
[4] Exhibit W15
In the days before being hospitalised, Dr M’s notes show a discussion with the wife recommending that the husband be hospitalised and the wife asked that it wait until after a birthday function.
The relevance of this issue relates to the question of what contribution each party was making and whether in this case, the wife carried a greater burden than did the husband. There can be little doubt that the wife did take on the care of the child and the management of the household to a greater degree than the husband at this time but I do not find that she did so to the exclusion of the husband nor that he made no contribution. One has to look at the whole of the relationship and not just the difficult or tragic parts and times.

Suicide ideation during the relationship

There were other times when the husband attended upon his psychiatrist. Dr M said that the husband had had ideas of suicide. He thought that the husband had contemplated suicide but importantly, never acted upon his plan. Dr M was cross-examined on his notes written during his consultations with the husband and said that in January 2005, he noted the husband’s words “death is all I think” and that he had said “goodbye” to the child. Dr M said that he could not remember the specifics of the consultation but he warned that the innermost thoughts of a person were not necessarily communicated to others and the fact that someone had a suicide ideation did not mean that there was an intention at all to carry it out. Having said that, Dr M acknowledged that there was always a risk but in weighing up all of the factors, he felt that the husband was not going to commit suicide. He was adamant that the husband had never actually made a suicide attempt. When describing the husband, he said that he was someone who had revealed on and off his innermost thoughts. Some were exaggerated and some deceptive but there was enough information to determine it was unlikely that the husband would have taken his own life. He acknowledged in the end however that all he could say was that the husband had told him that he had never attempted suicide and he accepted that.
In relation therefore to the question of suicide, I find that no attempt has been made by the husband. I accept that he not only wrote things but also said them at various times during the marriage. In the context of the role that the wife was trying to fulfil in caring for the child and managing the household, I find that the wife did have to take on the role to the exclusion of the husband at various times during the marriage.
In relation to the behaviour otherwise complained of by the wife, the husband conceded that he “disappeared” a few times, perhaps three or four and that he was away for hours or days on each occasion. When asked whether he could recall the wife complaining about where he had gone, he replied that he did not believe that she did. When asked whether he could envisage that his disappearance would be “troubling”, he replied that it would have been. When asked whether he had ever told the wife that he was “disappearing”, he simply replied “not explicitly”. When asked whether he had “implicitly” told her, his only response was to say that it was following a fight and he had left the house.
The husband was only prepared to acknowledge that he would not drive a car during the period of the Huntington’s Disease scare but that otherwise, there was only one motor car and that it was more convenient for the wife to drive him to and from work. He claimed that she generally liked driving.
He said that in respect of his poor memory, it took time for him to recover from the shock of the Huntington’s Disease scare.
The husband admitted that he lost the motor car when it was parked at a big carpark at the Shopping Centre and that he became concerned because he feared it had been stolen.
As for opening envelopes, he said that simply indicated the different roles that he and the wife undertook in their relationship and that it was the wife who opened the mail.
In relation to coming home from work and climbing under the doona and refusing to come out, his response was that he was having great difficulty at work associated with the stressors of corporate life and that this was his way of escaping. When challenged about how he justified his absence or disappearance as it was described by the wife over one or two days, he said that he needed time to himself to reflect and sort himself out because he was living in a very tempestuous house. He maintained a similar view in respect of the doona incidents as well saying that he sought “solace” in the bed.
The husband was hesitant and reluctant to make any concession that his illness and behaviour put a greater burden on the wife. Even when asked about whether he thought it would be unsettling and troubling for the wife as a result of his disappearance, he replied that it was but that “you’d have to ask her about the extent”.
The wife pointed to these incidents to show that her role was made so much more difficult during the relationship.
I have already made mention of the fact that one has to look at the whole of the relationship. I am cautious about drawing inferences from specific incidents highlighting difficulties in the relationship because contrasted against that, there were times when the parties obviously functioned well as a unit. They conducted a business. During the husband’s “corporate” period of time, both of them secured the Australian rights for a sports timing company. According to the husband, he was to do the marketing and the wife was to do the administration and customer relations. The wife’s view was the husband’s positive roles were exaggerated.
In June 2004 the wife and the husband purchased a Shop franchise which retailed electronic equipment and both were involved at various times until September 2005.
In late 2004, the husband ran unsuccessfully for the local Council and it was the wife who was his scrutineer, letter box organiser and according to the husband, actively involved in the campaign.

That pursuant to s.65DA(2) and s.62(B) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

PROPERTY ORDERS SOUGHT BY THE HUSBAND

The Husband retain, to the exclusion of the Wife, all his right, title and interest in the property located at and situate at [A] in the State of Victoria, more particularly described in Certificate of Title Volume […] Folio […] ("the [A] property").

The Husband forthwith do all such acts and things and sign all necessary documents required to sell a portion of his share interest in the share portfolio ("the sale") with [G Broker] ("the share portfolio") to the value of $551,083.00 ("the payment”).

Within 28 days of receipt of the payment by the Husband:
3.1the Husband discharge the mortgage to the Commonwealth Bank of Australia (mortgage no. […]) secured on the title of the [A] property and indemnify and keep indemnified the Wife against any liability and all apportionable rates, taxes and outgoings of or with respect to the [A] property of whatsoever nature and kind;
3.2the Wife deliver up to the Husband a Withdrawal of Caveat in registerable form in respect of Caveat No. […] registered on the title of the [A] property, at her expense ("the Wife's caveat”);
3.3the Husband pay to the Wife the payment less an amount referred to in paragraph 3.4 hereof;
3.4 the Husband and the Wife each contribute the sum of $40,000.00 (total $80,000.00) to be held in trust by the Husband's lawyers in a joint interest bearing account, being a sum to be set aside for the Capital Gains Tax (CGT) and Income Tax payments, with respect to the dividends and interest earned by the share portfolio and payable by the Husband upon the sale of his share interest pursuant to paragraph 2 hereof("the tax payment") with the following payments to be disbursed:
3.4.1    to pay the costs and expenses of the sale;
3.4.2 to pay the reasonable costs of a jointly appointed accountant to calculate the tax payment due and payable;
3.4.3to pay the tax payment in the following proportions:
3.4.3.1   65% by the Husband;
3.4.3.2   35%by the Wife-
with such payment to be made upon receipt of formal Notice of Assessment of tax payable by the Husband from the Australian Tax Office in respect of the 2006/2007 financial year, unless otherwise agreed in writing;
3.4.4 to pay the balance monies to the parties, if any, as follows:   3.4.4.1             65% by the Husband;
3.4.4.235% by the Wife.

In the event of any shortfall of monies pursuant to paragraph 3.4.3 hereof, the parties shall forthwith meet the balance due on the tax payment in the proportions referred to therein.

In the event that the Husband fails to comply with paragraph 2 hereof and/or the payment is not made to the Wife pursuant to paragraph 3 hereof the following shall apply:
5.1the Husband shall forthwith do all acts and things necessary and sign all necessary documents for the [A] property to be sold forthwith by public auction upon such terms and conditions as agreed to by the parties and failing agreement, as directed by the President of the Real Estate Institute or his nominee, with the proceeds of sale to be applied as follows:
5.1.1 first, to pay all costs, commissions, expenses of the sale;
5.1.2secondly, to discharge any mortgages or other encumbrances (including the Wife's caveat);
5.1.3thirdly, so much of the payment to the Wife outstanding (less the amount specified in paragraph 3.4 hereof, if applicable) together with interest as prescribed by the Family Law Rules 2004 to be adjusted 42 days from the date of these Orders until the payment has been met in total;
5.1.4 fourthly, the balance to the Husband.

Save as otherwise provided for in these Orders, the Husband shall retain for his sole use and benefit the balance of the share portfolio to the exclusion of the Wife and indemnify and keep indemnified the Wife in respect of the following:
6.1 the margin loan secured on the share portfolio;
6.2all taxation liabilities (including any capital gains tax) in respect of the share portfolio past, present or future of whatsoever nature and kind.

The Husband and the Wife forthwith do all such acts and things and sign all necessary documents, at the Husband's expense, to relinquish the Wife's right, title and interest to The [Eltham] Family Trust.

In respect of the corporate entity [O] Pty Ltd ("the company"):
8.1the Wife shall forthwith do all such acts and things and sign all documents necessary, at the expense of the Husband, to transfer to the Husband, all of her right, title and interest therein;
8.2the Husband shall otherwise retain to the exclusion of the Wife all of his right, title and interest in the company; and
8.3The Husband shall indemnify and keep indemnified the Wife with respect to any liability (including any taxation liabilities) past, present or future of whatsoever nature and kind.

That the Husband and the Wife shall forthwith do all such acts and things and sign all documents necessary to close the following jointly held accounts, with any credit balance at the time of closure to be divided equally between the parties:
9.1 the Members Equity Account number […]; and
9.2 the ANZ Bank Account number […].

The Husband and Wife shall forthwith do all acts and things and sign all documents necessary to transfer the Renault Megane motor vehicle from the company into the Wife's sole name, at the expense of the Wife, AND FURTHER the Wife be entitled to retain the said vehicle for her sole use and benefit.

The Wife shall otherwise retain the following monies received by her:
11.1 the sum of $125,000.00 received by the Wife by way of interim distribution; and
11.2 the sum of $68,835 previously expended by the Wife.

The Husband shall otherwise retain the following:
12.1 the sum of $90,000.00 received by the Husband by way of interim distribution; and
12.2the Kia motor vehicle registered in the name of the company, for his sole use and benefit.

That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
13.1each party shall be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders;
13.2each party shall retain any superannuation benefits belonging to or earned by that party to the exclusion of the other party;
13.3insurance policies shall remain the sole property of the owner named thereon;
13.4each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
13.5any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

Otherwise all extant Applications for interim and final Orders be dismissed and removed from the list of cases awaiting final hearing.

NOTATION
These Orders shall as far as practicable determine finally the financial relationship between the parties and avoid further proceedings between them.

DATED 8 January, 2007

[2007] FamCA 657

27 June 2007

Key Legal Topics

Areas of Law

Family Law

Property Law