Gitane and Velacruz (No. 3)

This matter concerned an application by the husband to vary consent orders made on 5 August 1998, specifically Orders 9 and 12, and to set aside Order 12. The wife had filed an enforcement warrant on 17 August 2005. The court was required to determine whether the wife had provided implied consent to the variation of the consent orders, particularly in relation to the husband's outstanding financial obligations.

The court considered the interpretation of section 79A(1A) of the Family Law Act 1975 (Cth), referencing previous authorities. The central legal issue was whether the wife's actions and intentions constituted an implied withdrawal of consent to the original property settlement orders, or if her conduct indicated an implied consent to their variation. The court noted that the absence of explicit consideration or conclusion on financial matters could be a "fatal flaw" in reasoning regarding the required attention under section 79A(1A).

Justice Rose applied the dicta from *M and M* and *R and R*, finding that financial transactions could be consistent with either an intention to disregard or to act in accordance with previous property settlements. The court concluded that the wife's private intention to seek payment at some future indeterminate time did not amount to a withdrawal of implied consent, especially as she had transferred her interest in a property to the husband despite his non-compliance with a payment condition. The court found that the wife had provided implied consent to the variation of Orders 9 and 13, and implicitly to the setting aside of Order 12, based on a qualified consent given in a telephone conversation, which became unqualified upon her receiving legal advice, signing the transfer, and not opposing its registration.

The court ordered that Order 9 be varied by substituting the amount of "$120,000.00" with "$31,260.00". Order 12 was set aside. The husband was ordered to pay the wife the sum of $31,269.00 on or before 29 February 2008. The enforcement warrant filed by the wife was stood over generally, with liberty to restore it to the list upon seven days' written notice. The husband was also ordered to pay the wife $1,250.35 for outstanding costs.