Menuhin & Menuhin
[2021] FedCFamC1F 13
•10 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Menuhin & Menuhin [2021] FedCFamC1F 13
File number(s): MLC 6298 of 2018 Judgment of: HARTNETT J Date of judgment: 10 September 2021 Catchwords: FAMILY LAW - PARENTING – relocation - where the mother seeks to relocate the residence of the children to Perth, Western Australia – where relocation not in the children’s best interests – balancing of the advantages and disadvantages of the parties’ competing proposals – equal shared parental responsibility – where children live with the mother - spend time arrangements are substantial and significant – family violence allegations made by the mother not substantiated.
FAMILY LAW - PROPERTY – where husband and wife seek alteration of property interests between them – 80/20 percentage split sought by wife – 65/35 percentage split sought by husband –where spousal maintenance sought by the wife – where child support payments and departure order sought by the husband – where the husband made a greater initial contribution – where the husband and the wife made equal contributions during the marriage and post separation – where the wife’s future needs are greater – 1% adjustment for the husband’s contribution and 20% adjustment for the wife’s future needs.
Legislation: Family Law Act 1975 (Cth) ss 60CC, 65DAA
Family Law Rules 2004 (Cth)Cases cited: A v A: Relocation Approach (2000) FLC 93-035; Babcock & Waddell [2019] FamCAFC 129; Blanding & Blanding [2016] FamCAFC 21; Bolitho v Cohen (2005) FLC 93-112; Challenor & Healey [2021] FCCA 860; Goode v Goode [2006] FamCA 1346; Hall & Hall [2016] HCA 23; Morgan and Miles (2007) FLC 93-343; Mulvany & Lane (2009) FLC 93-404; Plastow and Saville [2013] FCWA 105; Pyne & Dwight [2016] FamCA 1070; Sayer & Radcliffe (2012) 48 Fam LR 298; Standford & Standford (2012) 247 CLR 108; U v U (2002) 211 CLR 238 Division: Division 1 First Instance Number of paragraphs: 197 Date of last submission/s: 26 April 2021 Application in a case to reopen the evidence: 29 April 2021 Date of hearing in respect to application in a case: 18 May 2021 Orders made and published reasons for judgment in respect of application in a case: 26 May 2021 Date of hearing: 16-19 November 2020 and 1-4 March 2021 Place: Melbourne Counsel for the Applicant: Dr Ingleby Solicitors for the Applicant: Meerkin & Apel Lawyers Senior Counsel for the Respondent: Ms Vohra Junior Counsel for the Respondent: Ms Dellidis Solicitors for the Respondent: Mills Oakley Lawyers ORDERS
MLC6298 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MENUHIN
Applicant
AND: MR MENUHIN
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
10 SEPTEMBER 2021
THE COURT ORDERS:
FINANCIAL
BY CONSENT
1.That within 90 days from the date of these Orders (“the Date”), and, contemporaneously:
(a)the wife do all things and sign all documents necessary to transfer to the husband, at the husband’s expense, all of her right, title and interest in E Street Suburb F, Victoria (“the E Street property”);
(b)the husband do all things and sign all documents necessary to refinance and discharge the mortgage secured by the E Street property, at the husband’s expense;
(c)to the extent that the E Street property is being used for cross-collateral borrowings, the parties do all things and sign all documents as necessary to secure a release of the wife from any and all liability with respect to any and all cross-collateral borrowings and the husband is thereafter to retain sole liability for any and all cross-collateral borrowings.
NOT BY CONSENT:
(d)the husband pay or cause to be paid to the wife the sum of $1,758,881 (“the Sum”) by way of PEXA transfer.
BY CONSENT
2.That in default of the husband paying the Sum to the wife by the Date, the E Street property forthwith be placed on the market to be sold on terms as agreed between the parties in writing (“Default Sale”) and in default of agreement:-
(a)at a reserve of $3.2 million;
(b)by such real estate agent as agreed between the parties in writing and failing agreement, as recommended by the President of the Real Estate Institute of Victoria, or his or her nominee (“the Agent”);
(c)by auction on the earliest date available to the Agent or by such other sale method as agreed in writing;
(d)the Agent be directed and authorised in writing to communicate with each of the parties contemporaneously as to all aspects of the sale, inclusive of all offers received and all feedback from potential purchasers;
(e)at a reserve price agreed between the parties in writing in consultation with the Agent, and failing agreement as recommended by the President of the Real Estate Institute of Victoria, or his or her nominee;
(f)the parties each be and are hereby restrained from disclosing the reserve price to any third party prior to the reserve being exceeded at auction;
(g)the parties each be and are hereby restrained from selling the property at a lower price than the reserve price, save with the written consent of the other party first obtained;
(h)on an unconditional Contract of Sale providing for a settlement of no more than ninety (90) days unless otherwise agreed by the parties in writing;
(i)in the event the E Street property is not sold at auction then the property is to remain on the market for private sale thereafter as agreed between the parties; and
(j)the parties have liberty to apply in relation to the Default Sale.
3.That upon settlement of the Default Sale, the proceeds be disbursed as follows:-
(a)firstly, in payment of all costs and commissions of the Default Sale;
(b)secondly in payment of such sum as is required to discharge the mortgage and any other encumbrance secured by the E Street property;
(c)thirdly, in payment of all outstanding rates, taxes and/or outgoings in relation to the E Street property;
(d)fourthly, in payment of the Sum to the wife, together with interest in accordance with the Family Law Rules 2004 (Cth), subject to Order 4 herein; and
(e)fifthly the balance then remaining to the husband, subject to Order 4 herein.
NOT BY CONSENT
4.In the event the E Street property is sold for more than $3.2 million, the wife shall receive in addition to the Sum, 69 cents of every dollar and the husband shall receive 31 cents of every dollar above $3.2 million and in the event the E Street property is sold for less than $3.2 million; the Sum payable to the wife shall not be decreased.
BY CONSENT
5.That pending the payment to the wife of the Sum or the settlement of the Default Sale (whichever is applicable):
(a)the wife have sole use and occupation of the E Street property;
(b)the husband shall solely meet all instalments in respect to mortgage repayments, rates, taxes, insurances and other apportionable outgoings of the E Street property as and when they fall due and payable; and
(c)each party be restrained by injunction from further encumbering or otherwise increasing the level of borrowings secured against the E Street property, save the purposes of the husband making the payment of the Sum.
6.That on or before the Date, the husband do all things and sign all documents necessary to transfer to the wife, at the wife’s sole expense, the Motor Vehicle 1 (registration no. …).
7. That in relation to the following corporate entities, businesses and trusts:-
(a)G Company (ABN …);
(b)H Pty Ltd (ACN …);
(c)the H Trust; and
(d)any other corporate entities, businesses and/or trusts in which the parties have an interest, (“the Entities”)
and contemporaneously with the husband’s payment to the wife of the Sum or the settlement of the Default Sale (whichever is the earlier), the parties do all things and sign all documents necessary for the wife to resign any offices she holds in the Entities, relinquish any right and title in the Entities, and assign to the husband any interest and/or entitlement she may have in the Entities (and the husband duly accepts such assignment of the wife’s interest and/or entitlement) inclusive of transferring to the husband (and the husband accepting transfer of) any credit and debit loan accounts, at the husband’s sole expense.
8.That the husband indemnify and keep indemnified the wife in respect of all past, present and future liabilities (including but not limited to income tax, goods and services tax, capital gains tax, penalties and interest) and/or any demand for repayment of any loan accounts which may arise, or may have arisen, as a consequence of:
(a)the wife having or having had an interest in the Entities;
(b)by reason of any office holding, position and/or distributions and/or beneficial entitlement (if any) the wife may have or may have had previously have had in the Entities;
(c)any distributions and/or dividends paid to the wife by the Entities, either before or following the date of these Orders.
9.That the husband be and is hereby restrained from causing any of the Entities from causing any distributions, dividends or other payments to be made to the wife.
10.That the wife receive a base amount split of $195,434 from the husband’s superannuation entitlements, in accordance with Orders 11 to 14 herein, in order to effect an equalisation of the parties’ respective superannuation entitlements.
11.That Orders 10 to 14 (inclusive) hereof are binding upon K Company (ABN …, AFSL …), being the Trustee of the K Super Fund (ABN …) (“the Trustee”).
12.That pursuant to Section 90XT(1)(a) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable in respect of the interest of Mr Menuhin (“the husband”) in the Member … – Super (Employer Sponsored) account …61 ("the husband’s Superannuation interest"), the Trustee shall pay to Ms Menuhin (“the wife”) or her legal personal representative the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $195,434 and there should be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.
13.That paragraph 12 hereof has effect from the operative time.
14.That the operative time for the purposes of these orders is the fourth business day after the date of service of a copy of these sealed Orders upon the Trustee.
15.That a sealed copy of these Orders be served upon the Trustee by the wife’s lawyers.
16.That until the happening of any of:
(a)the transfer or (“rolling over”) into another superannuation fund of the payment split created by these Orders or the transfer or into another superannuation fund of the wife’s entitlements as the case may be;
(b)the wife satisfying a condition of release and being paid the payment splits created by these orders; or
(c)the wife executing a waiver of her rights within the meaning of Section 90XZA of the Act in relation to the payment splits pursuant to these Orders;
the husband shall be and is hereby restrained by himself and/or his agents from executing a binding death benefit nomination in favour of any person or doing any other act or thing which would render any part of his interests in the Fund a “non-splittable payment” within the meaning of the Family Law (Superannuation) Regulations 2001.
17.That the wife otherwise retain to the exclusion of the husband the household contents in the E Street property, save for the following items which shall be made available by the wife for collection by the husband or his agent upon the payment of the Sum:
(a) his clothes (including suits) and shoes;
(b) his boxes of personal paperwork including his notes and academic degrees;
(c) his personal books including his medical text books;
(d) his desktop computer;
(e) the husband’s “Artwork 1” painting;
(f) the husband’s “Artwork 2” painting;(g)his sporting and camping equipment, including his bicycle and light blue down sleeping bag;
(h) his antique table in the studio;
(i) his windsurfer;
(j) his rowing ergometer; and(k)any other personal possessions and effects of the husband’s.
18.That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:-
(a)each party be solely entitled to the exclusion of the other to all other real and personal property (including choses-in-action and shares) registered in the name of or in possession of such party, or to which that party is legally or beneficially entitled, as at the date of these orders;
(b)monies standing to the credit of the parties in any bank account are to become the property of the party in whose name the account is registered;
(c)each party retain for their sole use and benefit any superannuation or employment related benefits accrued in their sole name;
(d)insurance policies remain the sole property of the owner named therein;
(e)each party 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;
(f)each party be solely responsible for any liability of whatsoever nature and kind in their respective names, including but not limited to any credit card liability, and
(g)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
19.That in the event either party fails to execute any deed, document or instrument necessary to give effect to these Orders, within 7 days of that deed, document or instrument being forwarded to either party by post and by email, then in order to give full force and effect to the terms of these Orders, the Registrar of the Family Court of Australia at Melbourne be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the party that has failed to execute any deed, document or instrument necessary to give effect to these Orders upon the Registrar being provided with verification of such failure by way of affidavit, and the non-defaulting party shall be at liberty to make an Application for Costs against the defaulting party.
20.That the husband pay or cause to be paid to the wife, for the maintenance of the wife, a lump sum of $156,000, contemporaneously with the payment of the Sum.
PARENTING
21.All previous orders be discharged.
22.That the parties have equal shared parental responsibility for the children Y born … 2015 and X born on … 2017 (“the children”):
23. That the children live with the wife.
24.That the wife’s application to relocate the children’s residence to Perth be dismissed.
25.The children spend time with the husband during school terms as follows:
(a)For the balance of the 2021 school year, in the same fortnightly pattern as preceding years:
(i)in Week 1 from the conclusion of kindergarten/school Friday (or 8.30am if a non-kindergarten/school day) until the commencement of kindergarten/school Monday (or 7.30am if a non-kindergarten/school day); and
(ii) in Week 2:
(1)Thursday from 2.30pm for X, and from the conclusion of school for Y, until 6.30pm;
(2)from Sunday 8.30am until the commencement of kindergarten/school Monday (or 7.30am if a non-kindergarten/school day);
(b)During the 2022 and 2023 school year:
(i)in Week 1 from the conclusion of kindergarten/school Thursday (or 3.00pm if a non-kindergarten/school day) until the commencement of kindergarten/school on Monday (or 7.30am if a non-kindergarten/school day); and
(ii)in Week 2 from the conclusion of kindergarten/school Thursday (or 3.00pm if a non-kindergarten/school day) to the commencement of school/kindergarten Friday (or 7.30am if a non-kindergarten/school day);
(c)From the commencement of the 2024 school year and thereafter, from the conclusion of school Thursday (or 3.30pm if a non-school day) until the commencement of school Wednesday (or 7.30am if a non-school day).
(d)As may otherwise be agreed between the parties in writing.
SCHOOL HOLIDAYS
26.The children spend one week with the husband during the Term 1 and Term 3 School Holidays as follows, unless otherwise agreed in writing:
(a)the first week of the Term 1 holidays in 2022 and the last week of the Term 1 holidays in 2023, and alternating thereafter;
(b) the first week of the Term 3 holidays each year.
27.The children spend two weeks with the husband during the long summer holidays (inclusive of Christmas in alternate years) as follows, unless otherwise agreed in writing:
(a)In 2021/2022 and each alternate year thereafter from 10am 24 December to 6pm 7 January; and
(b)In 2022/2023 and each alternate year thereafter from 10am 27 December to 6pm 10 January.
SPECIAL OCCASIONS
28.That notwithstanding any other order to the contrary, the children spend time with the Husband on special occasions as follows:-
(a)on the husband’s birthday (…) if a school day, from the conclusion of kindergarten/school to 7.30pm, and from 9.00am to 6.00pm if a non-school day and, should the children already be in the husband’s care on the wife’s birthday, their time with the husband be suspended from the conclusion of kindergarten/school to 7.30pm if a school day or from 9am to 6pm if a non-school day;
(b)on Father's Day from 9am to the commencement of school Monday and should the children already be in the husband’s care on Mother’s Day, their time with the husband be suspended from 9am Mother’s Day until the commencement of school Monday;
(c)on Y’s birthday (…) and X birthday (…) provided that X birthday does not fall within the school holiday period in which case the children remain with the parent who is caring for them at that time, from the conclusion of kindergarten/school if a school day to 7.30pm and from 1pm to 6pm if a non-school day and should the children already be in the husband’s care on the children’s birthdays, their time with the husband be suspended from the conclusion kindergarten/school to 7.30pm if a school day and from 1pm to 6pm on a non-school day; and
(d)as may otherwise be agreed between the parties in writing.
CHANGEOVER
29.Until the commencement of the 2023 school year, where changeover does not occur at kindergarten or school, changeovers be facilitated by M Contact Services or such other changeover agent as agreed between the parties from time to time, with the husband equally meeting any costs incurred.
30.From the commencement of the 2023 school year, where changeover does not occur at the school/kindergarten, the parent into whose care the children are transitioning, is to collect the children at the commencement of the time and the other parents is to collect the children at the conclusion of that time.
RESUMPTION OF TIME
31.That the children’s time with the husband during school terms shall resume after any school holiday period in the same fortnightly cycle as if the school holidays had not occurred.
TELEPHONE COMMUNICATION
32.That unless otherwise agreed between the parties, the parties each be at liberty to communicate with the children by Skype/telephone/WhatsApp/Facetime once each second day whilst the children are in the other party’s care for a period not exceeding 15 minutes, and at any other reasonable time as requested by the children, with the party having the care of the children to facilitate the children’s communication with the other party in accordance with this Order.
EDUCATION
33.That the parties do all things and sign all documents necessary to maintain the children’s enrolment at N School for their primary and secondary education, unless otherwise agreed between the parties in writing.
34.That subject to any policy of the kindergarten/school, the parties forthwith irrevocably authorise and direct the children’s kindergarten/school to communicate with, and provide information directly to, the other party, including regarding any absences and injuries sustained by the children, and upcoming school, extra-curricular or sporting events and each party be at liberty to:
(a)obtain school reports, school notices, school newsletters, school photographs, and the like
(b)attend all school activities, functions and all extra-curricular activities to which parents are ordinarily invited or encouraged to attend.
HEALTH
35.That each party shall:
(a)advise the other of any medical or allied health appointment scheduled for the children, as soon as practicable upon such appointment being made;
(b)advise the other as soon as practicable and not more than twenty-four (24) hours after the event, of any serious illness or injury suffered by the children and the contact details of any health professional attending upon the children;
(c)keep the other party advised of the contact details of any medical or allied health practitioners treating, or consulting, the children;
(d)provide to the other party any reports they receive from any medical or allied health practitioner as soon as practicable upon such reports being issued with both parties being at liberty to communicate directly with any health practitioner involved in the children’s care;
(e)do all things and sign all such documents necessary to authorise all medical and allied health practitioners to communicate directly with the other party regarding the children;
(f)be at liberty to attend all specialist medical appointments made for the children, or otherwise communicate with such specialist with respect to all such appointments.
TRAVEL
36.That each party be at liberty to travel interstate or overseas with the children during their respective time with the children, provided that:
(a)such travel occurs on non-school days;
(b)the party travelling provides the other party with at least 48 hours written notice of the intended interstate travel, together with contact details of where the children will be staying;
(c)the travelling party provides at least 42 days written notice of the intended international travel, and:
(i)not less than 14 days prior to departure, provides a copy of the itinerary, all flight tickets and contact details of where the children will be staying;
(ii)the destination is not contrary to any travel advisories issued by the Australian Department of Foreign Affairs and Travel (“DFAT”) and/or any equivalent government bodies of the destination country
(d)the travelling party facilitates telephone communication between the children and the non-travelling parent in accordance with Order 32 herein.
BY CONSENT
PASSPORTS
37.That each party do all things and sign all documents necessary, at the parties’ equal expense, to obtain and maintain an Australian passport for the children;
38.That each party do all things and sign all documents necessary, at the husband’s expense, to obtain and maintain a Country O passport for each of the children, including if necessary, for the purposes of obtaining such passport, a Country O Birth Certificate.
39.That the wife hold the children’s Australian Passports and the husband hold the children’s Country O Passports.
40.That to facilitate the travelling party’s travel with the Children pursuant to Order 36 herein, the non-travelling parent must do all things necessary to facilitate the intended travel, including providing the children’s passport and/or birth certificate 21 days prior for the purposes of booking the necessary travel arrangements.
BY CONSENT
MISCELLANEOUS
41.That each party shall notify the other within 24 hours of any change to their mobile telephone and email address and provide at least 21 days’ written notice of any proposed change of residential address.
42.That each party, their servants and agents, be and are hereby restrained from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other party to, or in the presence or hearing of the children, and allowing the children to remain in the presence or hearing of any third party engaging in such behaviour;
(b)discussing these family law proceedings with, or in the presence or hearing of the children, and allowing the children to remain in the presence of, or within earshot of, any third party engaging in such behaviour, save for explaining time arrangements pursuant to these Orders;
(c)showing or leaving accessible to the children, any document connected with these proceedings; and
(d)showing to or leaving accessible to the children, messages, emails or other written communication, between the parties.
CHILD SUPPORT
43.That the husband pay to the wife periodic child support in accordance with any relevant administrative assessment (Ref: …) issued by the Child Support Agency, with respect to the payment of child support for the Children.
44.That in addition to Order 43 herein, and pursuant to section 123(1)(a) of the Child Support (Assessment) Act 1989 (Cth) (“CSAA”) the husband pay or cause to be paid direct to the provider where possible, or in reimbursement to the wife within seven (7) days of the provision of receipts to the husband by the wife, to the wife’s nominated bank account, the following by way of child support in a form other than periodic support for the children:
(a)100% of all compulsory school fees and levies;
(b)100% of all books, uniforms, and technology equipment;
(c)100% of school camps, school excursions and agreed school extra-curricular activities;
(d)100% of the children’s private health insurance premiums and ambulance cover, at the current level of cover; and
(e)100% of all out-of-pocket and non-rebateable hospital, medical and dental expenses.
45.The child support ordered to be paid by the husband by way of Order 44 herein does not reduce the annual rate of child support liable to be paid by the husband under any relevant administrative assessment (Ref: …) issued by the Child Support Agency with respect to the payment of child support for the Children, as assessed by the Child Support Agency from time to time.
46.All extant applications be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Menuhin & Menuhin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J:
PRELIMINARY
This proceeding deals with both parenting and property orders as sought by the Applicant mother and wife (“the wife”) who filed an initiating application on 6 June 2018, and as sought by the Respondent father and husband (“the husband”) who filed a response to the initiating application on 17 September 2018 .
The wife sought interim parenting, property and spousal maintenance orders in her initiating application which included that the husband pay mortgage payments and council rates in respect of the former matrimonial home in which she and the children have continued to reside; health insurance; house and home contents insurance; and vehicle insurance and vehicle registration. She sought that the husband pay her a weekly sum of spousal maintenance. The husband has made, ongoing, all these payments, with the spousal maintenance sum paid being $1,100 each week.
The wife sought final orders that would permit the children; Y (“Y”) born in 2015 and X (“X”) born in 2017 (“the children”) to move with her to her city of origin, Perth, Western Australia. The wife is proposing to move to Perth as a single separated parent who would be supported in Perth by a network of family and friends, in particular the maternal grandmother. She anticipates that she will find employment in Perth, as a professional, and work on a part time basis and then a full time basis. She claims, with no supporting evidence, that housing is cheaper in Perth than in Melbourne. The husband is opposed to this application. He rejects the claim made by the wife that he can readily relocate his working life to Perth, and did not put before the Court a case that would have him relocating to Perth as an alternative order sought.
The wife also sought final orders that the parties have equal shared parental responsibility of the children; that the children live with her; that they spend time with the husband inter alia twice per month in either Melbourne or Perth; and that there be an alteration of property interests between the parties.
Throughout the course of the litigation, and in respect of the children, the spend time with orders as sought by each of the parties was further particularised. The husband agreed that the children should live with the wife and that the parties should have equal shared parental responsibility of the children.
The final hearing took place between 16 to 19 November 2020 and 1 to 4 March 2021. The parties subsequently each filed written closing submissions seeking orders which are annexed to these reasons for judgment.[1]
[1] Annexure Schedule 1 sets out the orders sought by the Applicant and Annexure Schedule 2 sets out the orders sought by the Respondent.
On 29 April 2021, the wife made an application to re-open the evidence to inform the Court of events since the conclusion of the final hearing on 4 March 2021. Dismissal of the application in a case was sought by the husband. The Court made orders and published reasons for judgment on 26 May 2021. The orders made were as follows:
(1)The Application in a case of the wife filed 29 April 2021 be dismissed.
(2)The wife pay the costs of the Respondent husband as agreed and on a party/party basis. In the event of a failure to agree such costs, such costs are to be taxed.
These reasons explain why I have decided that the children should remain living in the state of Victoria with the wife and detail my findings regarding the balance of the orders as sought by the wife and by the husband.
BACKGROUND
The wife was born in Perth in the state of Western Australia in 1984 and is currently 37 years of age. The husband was born in Country O in 1977 and is currently 44 years of age.
In 2007, the parties met in Perth when the husband was in his second year of university and the wife was in her final year of university. In June 2008, the parties commenced living together in Brisbane where they continued to live until December 2008, when they moved to Melbourne and rented a premises in Suburb P.
In Melbourne, the wife worked as a healthcare professional. In 2010, the wife commenced further studies at the Q University whilst continuing her work on the weekends as a healthcare professional. The husband completed his studies in 2010.
In 2013, the parties married. In November 2013, the parties purchased E Street Suburb F (“the E Street property”) for $2,560,000 with a mortgage with the Commonwealth Bank of Australia (“CBA”) in the sum of $1,800,000. The property was registered in the wife’s name. It became the matrimonial home.
In 2015, the parties’ first child, Y, was born and he is 6 years of age. The parties’ second child, X, was born in 2017 and he is 3 years of age, soon to be 4 years of age.
The parties separated on 6 March 2018, when the husband was served with an Interim Intervention Order (the “IVO”) obtained ex parte by the wife at the Melbourne Magistrates’ Court on 5 March 2018. As a consequence of the IVO obtained by the wife, the husband had to vacate the parties’ home. Separation occurred after the parties had cohabitated for a period just short of 10 years. Y was approximately 2 ½ years of age and X was 5 months of age.
In March 2018, the parties made an agreement, with the assistance of their solicitors, for the husband to spend time with the children each Tuesday and Thursday, for 2.5 hours with Y and 1.5 hours with X and on Sundays, for 5 hours with Y and 1.5 hours with X. On 27 March 2018, the husband spent time with the children, his first since separation. This time was supervised by the wife, at her insistence.
There was an IVO directions hearing on 4 April 2018.
On 17 April 2018, the wife via her solicitors, sent the husband’s solicitors a letter detailing her proposal to relocate the residence of the children to Perth. She sought the husband’s consent. He did not consent. On 6 June 2018, the wife made her application to the Court seeking parenting, relocation and property orders.
On 15 June 2018, there was a further IVO directions hearing. On 26 July 2018, the changeover venue became the Suburb S Police Station at the wife’s request. The wife subsequently filed an application in a case on 31 July 2018 and sought orders including that changeovers be professionally supervised, and that the husband be restrained from contacting the wife, save for arrangements regarding spend time arrangements with the children or in the event of an emergency.
On 3 October 2018, a section 11F of the Family Law Act 1975 (Cth) (“the Act”) child responsive memorandum was released.
On 9 October 2018, interim consent orders as to parenting were made by Senior Registrar Fitzgibbon including, relevantly, that: the husband spend time with the children three times a week, according to the husband’s work roster; that changeover take place at the entrance of McDonald’s in R Street, Suburb S; that neither party approach the motor vehicle of the other party during changeover; and that the wife be permitted to travel with the children to Perth from 12 to 26 October 2018 with the husband to have makeup time with the children in November 2018. There were also orders made for spousal maintenance such that the husband pay the sum of $1,100 per week to the wife for her necessary support, and that by way of an interim property order, the sum of $70,000 be transferred from the husband, to the wife’s solicitors to be used by way of litigation funding and to be characterised as a part-property settlement advanced to the wife.
On 12 March 2019, the Police applied for an intervention order on behalf of the husband against the wife which was subsequently refused.
On 25 March 2019, the wife ceased the children’s time spent with the husband. On 29 March 2019, the wife filed an application in a case seeking reportable therapeutic counselling to be undertaken by the parties and the children and seeking supervised changeovers.
On 1 April 2019, the husband filed a contravention application claiming that the wife failed to make the children available to him on three occasions between 26 to 31 March 2019. On 9 April 2019, the wife agreed to resume the husband’s time with the children with the changeover to occur in the foyer of the Suburb S Police Station. On 11 April 2019, the husband’s time with the children resumed.
On 23 April 2019, the husband filed a second contravention application, claiming that the wife failed to make the children available to him four times between 2 to 9 April 2019.
On 29 April 2019, a contravention hearing was held before Justice Williams and interim consent orders were made on the same day for, relevantly, changeover to be facilitated by an independent person at equal expense to the parties; the parties to attend upon Dr T for therapeutic counselling; there be a communication book; and an order for makeup time.
On 30 May 2019, the husband filed an application in a case for Y to be enrolled for preparatory class in 2021 at U School.
On 6 June 2019, a final IVO was made against the husband by consent without admissions and due to expire on 6 December 2020.
On 28 June 2019, the wife filed a response, seeking that the husband’s application in a case filed 30 May 2019, be dismissed. She also sought that: Y attend upon a psychologist; three nominated persons be appointed as agents for changeovers or professional supervision at changeover occur; that she be permitted to travel with the children to Perth from 17 to 31 August 2019 and that the husband transfer to her the sum of $30,000 for legal fees incurred by her.
On 2 July 2019, Senior Registrar Fitzgibbon made interim orders and published a judgment. The orders made were that Y be enrolled at U School for preparatory class in 2021 at the husband’s expense and that all extant parenting matters, the wife’s application for litigation funding, and the husband’s costs application be adjourned.
On 13 July 2019, the wife alleged that Y made claims to her of being sexually abused by the husband. On 15 July 2019, the wife contacted firstly, V Child Services; secondly the Department of Health and Human Services (“DHHS”); and thirdly the Sexual Offences and Child Abuse Investigation Team (“SOCIT”) who interviewed Y about the allegations of sexual abuse as allegedly suffered by Y and as allegedly perpetrated by the husband. Y made no disclosures at this interview.
On 9 August 2019, Mr D from M Contact Service (“MCS”) commenced to facilitate changeovers.
On 13 August 2019, interim consent orders were made by Justice Johns that the husband pay to the wife the sum of $100,000 to be categorised as a part property settlement for the litigation funding of this proceeding, and that the wife’s response to the application in a case filed 28 June 2019 be dismissed.
On 20 August 2019, the parties consented to orders: to attend upon Mr B for the purposes of the preparation of a family report; to provide for the wife and children to travel to Perth between 9 and 23 September 2019. There were also orders made by the Court in relation to makeup time.
On 9 September 2019, the wife filed an application in a case seeking to travel to Perth on a holiday with the children from10 December 2019 to 1 January 2020. On 11 October 2019, the husband filed a response to the application in a case stating that the wife’s proposed travel crossed over with the husband’s time with the children in Melbourne over Christmas 2019 as provided for in earlier orders of the Court.
On 11 October 2019, the wife filed an amended application in a case for financial disclosure by the husband. Directions were made by Registrar Sudholz on 16 October 2019 for the husband to provide the financial documents requested. On 26 November 2019, interim orders were made by Senior Registrar Field that the wife be permitted to travel to Perth between 14 and 28 December 2019 and that makeup time be determined in chambers upon receipt of a minute by each party. Senior Registrar Field made interim orders in relation to make up time on 11 December 2019.
On 17 February 2020, the husband filed an application in a case seeking an increase in his time spent with the children.
On 20 February 2020, Mr B released his family report.
On 24 February 2020, the wife filed a response to the application in a case offering extended overnight time for Y and the commencement of overnight time for X.
On 28 April 2020, the husband filed an amended application in a case for increased time with the children. On 1 May 2020, the wife filed a further amended response to the amended application in a case offering to the husband, four out of 14 nights with the children.
On 5 May 2020, Justice McEvoy adopted the husband’s proposal and relevantly made orders for spend time arrangements between the father and the children as follows:
…
2.That the children Y (“Y”) born … 2015 and X (“X”) born on … 2017 (collectively known as “the children”) spend time and communicate with the husband in a two (2) week cycle as follows:
(a) in week 1 (commencing on 4 May 2020):
(i) on Tuesday from 8.45 am to 12.30 pm; and
(ii) on Friday from 3.30 pm through until Monday at 7.30 am;
(b) in week 2 (commencing on 11 May 2020):
(i) on Tuesday from 8.45 am to 12.30 pm; and
(ii) on Thursday from 2.30 pm to 6.30 pm;
(c) in week 2 (commencing on 15 June 2020):
(i)on Tuesday from 8.45 am overnight until 7.30 am Wednesday; and
(ii) on Thursday from 2.30 pm to 6.30 pm.
…
On 19 June 2020, I ordered that; the matter be listed for trial; that the wife receive a further $100,000 in part-property settlement to fund litigation; that there be a valuation of the E Street property at the husband’s expense (with the wife to reimburse him as to one half at a later time); and that there be a mediation held ninety days prior to trial at the husband’s expense (with the wife to reimburse him as to one half at a later time).
The final hearing in this matter commenced on 16 November 2020 as described in paragraph 6 above.
MATERIAL RELIED UPON
Both parties were legally represented and cross-examination occurred. Each of the parties provided case outline documents setting out the material each of them relied upon. I have also had regard to the material marked and tendered as exhibits. Each of the parties also filed closing written submissions which I have considered.
The following material was relied upon by the wife:
(a)amended application for final orders filed 14 September 2020;
(b)trial affidavit of the wife filed 14 September 2020;
(c)affidavit of Ms Z filed 14 September 2020;
(d)affidavit of Ms AA filed 14 September 2020 (not required for cross-examination);
(e)financial statement filed 14 September 2020;
(f)affidavit in reply filed 19 October 2020;
(g)affidavit of B filed 26 February 2020;
(h)subpoena to BB Company filed 17 July 2020;
(i)application for review filed 2 September 2020;
(j)affidavit in support filed 2 September 2020;
(k)further and better particulars filed in the Magistrates’ Court of Victoria at Melbourne on behalf of the wife on 7 May 2020 and produced pursuant to Rule 15.34 of the Family Law Rules 2004 (Cth) (“the Rules”); and
(l)response to further and better particulars filed on behalf of the husband on 4 June 2018 produced pursuant to Rule 15.34 of the Rules.
The following material was relied upon by the husband:
(a)amended response of the husband filed 5 October 2020;
(b)amended financial statement of the husband filed 5 October 2020;
(c)trial affidavit of the husband filed 9 October 2020;
(d)affidavit of Mr CC filed 5 October 2020;
(e)affidavit of Ms DD filed 5 October 2020;
(f)affidavit of Dr EE filed 5 October 2020;
(g)affidavit of Mr FF filed 5 October 2020 (not required for cross examination);
(h)affidavit of Mr D filed 5 October 2020;
(i)Section 11F child inclusive memorandum dated 3 October 2018;
(j)affidavit of Mr B filed 24 February 2020; and
(k)documents produced pursuant to subpoena.
THE EVIDENCE
Mr and Ms Menuhin and the maternal grandmother
Each of the wife and husband challenged the affidavit evidence relied upon by the other and other evidence given orally save that indicated in paragraphs 44(d) and 45(g) above. It is not necessary in these reasons for judgment to comment upon the entirety of the evidence of each witness nor to comment on every exhibit tendered. However every piece of evidence relied upon by the parties has been read and carefully considered by me.[2] The standard of proof in the proceeding is the balance of probabilities.[3] Statements of fact in these reasons are findings of fact on the balance of probabilities.
[2] Bell & Nahos [2016] FamCAFC 244, [28]; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [62].
[3] Evidence Act 1995 (Cth), s 140.
The wife detailed specific instances of what she claimed to be family violence throughout her affidavit material, and it was a cornerstone of her case to relocate. She was cross-examined at length about these incidents, and the husband’s version of each event put to her. By contrast, the husband was not cross-examined as to his denial of certain of the claims of family violence as made by the wife, or aspects of other related incidents. I found the wife to be not an entirely truthful witness. Whilst she mostly gave truthful evidence, she exaggerated matters, on occasion gave evidence which was entirely improbable, or untruthful, and purposefully placed before the Court a case which was constructed to place the husband in the worst possible light, albeit she made a number of concessions. Little of the lightness in the parties’ relationship which had existed between them was referred to by the wife. The husband was a truthful witness who made appropriate concessions. He was more insightful as to what promoted the children’s best interests and endeavoured to act in accordance with the promotion of them. He has not engaged in conduct to undermine the wife, nor to vilify her. The wife has engaged in a campaign to harm the husband. She is intent on relocating the residence of herself and the parties’ two very young sons to Perth in Western Australia and has gone to considerable lengths to achieve that outcome as discussed below. The maternal grandmother gave evidence that was at times inconsistent and/or did not satisfy the balance of probabilities for its acceptance by the Court. She was very aligned with the wife and echoed the wife’s views. The kindness as shown to her by the husband, and his generosity, was ignored. The husband had no redeeming features in the mind of the maternal grandmother.
The parties met some 13 years ago. The husband was on a placement in Perth in the course of his university training. The wife was living at home and just commencing her career as a healthcare professional. The husband completed his placement in Perth and moved thereafter to Brisbane. The wife of her own volition, followed the husband to Brisbane to continue their relationship as desired by both parties. The wife was then 24 years old. When the husband left Brisbane and returned to Melbourne as a trainee medical professional, the wife followed him to Melbourne. Again that was something which both parties desired. The parties’ relationship along the way became a de facto relationship which proceeded on to an engagement in 2012, and a wedding in 2013. At any time between 2008 and their marriage in 2013, the wife could have left the relationship if it was not one that she desired to pursue and remain committed to. She did not do so, and nor did the parties consider the termination of their relationship. Mostly it was a happy time wherein one supported the other. They liked each other and had fun together. The wife proceeded to commence a family with the husband. Prior to that, the wife had taken on further studies, being the obtaining of a post graduate degree. She worked on some but not all weekends as a healthcare professional during the period of her study, and she retained the income as earnt by her in respect of that employment. She could expend it as she wished, and did so. The wife was supported financially throughout this period by the husband. She was also supported in the pursuit of her studies, and encouraged, by the husband. The wife had friends in Melbourne with whom she socialised, and others with whom she studied. She lived a fairly independent life, in particular after she obtained employment following the completion of her degree and became involved in her working life. The husband worked very long hours, including at City GG, City HH, and various hospitals in Melbourne.
Despite the seemingly positive and actual progression in the parties’ relationship as described above, the wife claimed in her evidence at trial that she had been a victim of family violence as perpetrated upon her by the husband. Arguments had between the parties in the course of their relationship, including those on occasion when one or other acted immaturely or badly, and going as far back as 2009, were relied upon by the wife to establish her assertion that the husband was a controlling and coercive man, who engaged in family violence primarily directed toward her.
The wife alleged in her affidavit evidence that the husband had, in 2009, dragged her down a hallway because he wished for her to do some paperwork for him. The husband denied that allegation and further denied that he had ever been physically violent toward the wife. The Court accepts his evidence. He conceded he did engage in some silly behaviours during the course of the parties arguments, such as throwing a hairbrush out of a window; a temporary engagement ring out of a window, which he later retrieved; and some clothing of the wife’s out of a window, in retaliation for her having engaged in the same act in respect of his clothing. Not sensible things to do perhaps, and indicative of a temper at the time. But not necessarily indicative of a violent man or woman. The wife also alleged that in 2011, the husband hit her, causing her glasses to fall off her face. Again the husband denied this and his denial is accepted by the Court. These alleged episodes occurred well prior to the parties’ marriage, to the birth of their children, and to their lived life as a family with their children interacting with their children’s grandparents, extended families and friends. The relevance of these episodes, even if the Court were to accept the evidence of the wife which the Court does not, is limited. They are raised in the context of the wife seeking to relocate, and providing as a reason her need to have family support to assist in her coping with the husband. These parties had arguments during the course of their relationship. The wife herself instigated some of this conflict, and was forceful from time to time in her expression of her disdain for the husband. For example, when the parties were arguing in May 2017, about a family holiday, amongst various other texts to and from, the husband unhelpfully called the wife, “a catastrophising weirdo of the highest order” and the wife unhelpfully said to the husband, “what a crock of shit” and “You’re a deadbeat dad”. Also at around this time, being in 2017 when the wife described herself as scared of the husband, she referred to him as a “prick” and said to him “well, I can’t stand you or your stupid voice, or your dumb arrogant ideas. Crawl under a rock, dickhead”.
The wife gave evidence that the husband had directed her to cease her previously close relationship with her parents from around the time immediately following her wedding in 2013, until her father became very ill in late 2014, a period of approximately 18 months. During this period, despite the husband being absent from the home for very lengthy periods in the pursuit of his career, and despite the wife working and having access to email and text communication, together with phone communication, the wife claimed that she was unable to communicate with her parents because of the direction given by the husband. The wife’s evidence was that she reconciled with her parents in 2014, following the husband saying to her words to the effect of “it’s time to make your peace with them. You need to make amends.” The wife has since told her mother that the reason for this cessation of contact, save for those occasions when the wife rang her parents for birthdays, Mother’s Day, Father’s Day, and to advise them of the purchase by she and the husband of the matrimonial home in Suburb F, was that the husband was so controlling of her that he prohibited such contact. She was unable to act freely and in accordance with her own wishes. Her mother believes this account. The Court does not. The Court accepts the evidence of the husband that the reason for the wife’s unilateral cessation of contact with her parents, was connected to the historically difficult relationship the wife had with her parents in the period that he had known the wife. This was not the first cessation of contact, emanating from the wife, with her parents.
The wife’s mother, and maternal grandmother of the children, deposed in her affidavit material that her late husband and she had minimal contact with the wife and husband in the period prior to their marriage (from 2008 to 2013).[4] This was, I find, a consequence of the then poor relationship between the wife and her mother.
[4] Affidavit of Ms Z sworn 14 September 2020 at paragraph 2.
The husband described the wife’s relationship with her mother as being “tumultuous at times”. He said in his evidence that they had had significant ups and downs which he had lived through. He said:
…they have gone long periods without speaking. There has been a lot of issues between them about the way that Ms Menuhin feels that she has micromanaged her, controlled her, the way that she had a relationship with her – … – many, many issues between mother and daughter. So I’m not entirely convinced that the relationship and the nature thereof is actually what it’s purported to be.
It was the husband’s evidence, which the Court accepts, that the wife’s historically (and continuing in the summer of 2012) difficult relationship with her parents caused the wife to not invite them to her graduation dinner. The wife’s evidence was that the husband “wouldn’t let me invite them.” The Court does not accept this evidence of the wife. A short time later, and prior to the 2013 wedding of the parties, with an improvement in the wife’s relationship with her parents, the wife’s mother arrived in Melbourne to spend time with the wife prior to and during her wedding celebrations. The husband supported the wife staying in a hotel with her mother at that time, which was a generally happy occasion, though the wife cannot concede this now. The husband supported the relationship at that time, as he did again when the wife resumed her relationship with her parents, on hearing of her father’s severe ill-health. The husband urged the wife to ring her parents and to encourage them to travel to Melbourne for a second opinion in respect of the wife’s father’s illness. The wife’s evidence was that the husband acted as he did, for her, and that she remains grateful to the husband that her father got the care he did at that time. The wife omitted to refer to her gratitude to the husband in her lengthy affidavit evidence, and instead included much minutiae and irrelevant detail, such as her assertion that the husband was reluctant to attend her brother’s wedding in 2010; that he disapproved of the dress she wore, and made, as alleged by the wife “nasty comments about her appearance the entire night”.
The husband encouraged the wife to have her parents stay with them from late 2014 when they came and went from Melbourne for her father’s medical treatment. This was approximately two years into the parties’ marriage. The husband used his contacts to get the wife’s father the best medical treatment he could, and the wife conceded in evidence at trial that the husband did not need to do any of the things he did, but that he did and that she was “glad he did”. In her earlier affidavit evidence, she could not say this. She said, in paragraph 69 of her affidavit in reply: “it is true he instructed me to invite them into our lives”.
The maternal grandmother also gave evidence that the estrangement between she and her daughter was essentially imposed by the husband, and it was only in 2014 that the husband: “permitted us [them] to do so [have a relationship] due to my husband’s severe illness and him seeking treatment at the JJ Medical Centre.”[5]
[5] Affidavit of Ms Z sworn 14 September 2020 at paragraph 4.
The maternal grandmother was cross examined as to this by Senior Counsel for the husband as follows:
And you put in your affidavit material of the years when your husband was still alive, during the relationship of the parties that you were not permitted by Mr Menuhin to spend time with your daughter?‑‑‑Yes, I did put that.
You would say that he, what, controlled Ms Menuhin and her relationship with her parents and her family generally?‑‑‑Yes, I would.
And this is something that Ms Menuhin has told you since that time, is it?‑‑‑Since the separation, yes. I knew nothing prior to that.
The maternal grandmother ultimately conceded that from the time the maternal grandfather was diagnosed with cancer, until the maternal grandfather passed away, the husband was both supportive of, and helpful to, she and her husband. She could not explain why the husband’s attitude to her thereafter changed as claimed by her.
The maternal grandmother gave evidence that she spoke to the husband on the phone following her husband’s death, “Mr Menuhin would ring me…..He would just ring me and chat to me about what he had done and what he was doing. I don’t know the exact reason for him ringing.” The maternal grandmother was reluctant to concede that the husband might have been ringing to support her through her grief, as I find he was. And as she knew he was.
The wife’s parents were in Melbourne living with the parties from around the time of Y’s birth in 2015, until some five weeks later. The wife acknowledged that the husband was supportive of that arrangement. The wife’s parents returned to Melbourne in early November 2015, and again stayed with the parties for some weeks. On 15 December 2015, the wife and children travelled to Perth to spend Christmas with the wife’s parents and family. Such travel was with the support and encouragement of the husband albeit he did not see Y for a period of approximately six weeks. Y was then only three months old. The husband remained in Melbourne working. Thereafter, the husband again encouraged and supported the wife to spend time with her family in Perth in the circumstances of her father’s terminal illness. The wife returned to Perth with Y in April 2016, and remained there for approximately two months returning in July 2016. That trip was undertaken with the husband’s knowledge, approval and consent at a time when Y was still very young, being approximately seven months old. The wife’s father died in Perth in 2016 and the husband was a pallbearer at the wife’s father’s funeral. The husband had to return thereafter to Melbourne to work. The wife remained in Perth with Y to be with her family for a further two weeks.
The wife’s mother, following her husband’s death, commenced to travel to Melbourne frequently. On each visit she resided with the parties. She was present for Y’s first birthday in 2016. In November 2016, the wife and Y were in Perth for one week whilst the wife was working. In January 2017, the wife’s mother was then unwell, and the husband made arrangements for her to receive specialist care and hospitalisation in Melbourne. Otherwise, the wife’s mother stayed with the parties for a time before returning to Perth. The wife conceded in evidence at trial under cross-examination that the husband’s assistance at this time was “a generous, kind and supportive act”. The wife’s mother returned to Melbourne around May 2017, remaining with the parties until July 2017. The wife’s mother again returned to Melbourne, staying with the parties until late 2017, which included the time of X’s birth. All of these lengthy and consistent visits of the wife’s mother to the parties’ household were supported and encouraged by the husband. The wife conceded, in cross examination, that the husband’s behaviours at that time in respect of her mother were indicative of “a supportive, generous and kind partner” who understood the importance of the wife’s mother to the wife in the circumstances of the wife herself becoming a mother, and of the wife to her mother in the circumstances of her mother becoming a widow. But this evidence was obtained through concession in cross-examination. There was, in the wife and her mother’s affidavit evidence, little about the husband which was positive.
Whilst in the parties’ household, the maternal grandmother observed arguments between the parties. She deposed in her affidavit material to those arguments. Some examples were as follows:
(a)on … 2017:[6]
I was helping Ms Menuhin pack her bag for hospital when she received a telephone call from Mr Menuhin….I heard the tone of the conversation change as Mr Menuhin raised his voice and became angry and Ms Menuhin became visibly upset. I could hear Mr Menuhin yelling at Ms Menuhin.
(b)in or about October 2017:
I witnessed Ms Menuhin and Mr Menuhin arguing about Mr Menuhin’s refusal to spend time with the children. Mr Menuhin yelled at Ms Menuhin, demanding that she go through his weekly schedule to find time for him to fit in seeing the children. He grabbed a piece of paper from the printer and started to write down the days of the week. He then smashed his pen down on the bench so hard with his fist that it broke. He was stamping his feet and continued to yell at Ms Menuhin. I retreated from the room. Mr Menuhin’s behaviour was frightening and intimidating.[7]
I was present on Sunday, 5 November 2017, when Mr Menuhin came downstairs at approximately 1:00 p.m. When Mr Menuhin came into the living room he noticed the new dining table which Ms Menuhin had purchased and became extremely angry. He began yelling at Ms Menuhin and saying that the purchase of the table was “rude, rude, rude”. He also called it “a divorceable offence”. When Ms Menuhin pointed out to Mr Menuhin that he did not have any time to go shopping and that it had only cost $300, Mr Menuhin became enraged and started yelling and smashing his fist on the kitchen bench and stamping his feet. He threatened Ms Menuhin that he would change the password on the internet banking if she ever bought anything else without his permission. I found this incident to be particularly frightening and upsetting. [8]
[6] Ibid at paragraph 14.
[7] Ibid at paragraph 15.
[8] Ibid at paragraphs 16-17.
The year 2017 had started off with the pregnancy of the wife, a happy event. The wife however claimed that by late 2017, she was frightened of the husband. Certainly both parties were stressed, with the wife having the care of a very young child and about to give birth to a second, and the husband working horrendous hours. They also had the wife’s mother fairly constantly in the household, and the husband was beginning to feel somewhat of an outsider in his home. The maternal grandmother was not neutral “Switzerland” as the husband indicated to the wife her mother should be whilst residing in their home. The husband gave the following evidence:[9]
DR INGLEBY: And the problem was that you felt no longer needed or useful?‑
MR MENUHIN: ‑‑Well, with Ms Menuhin’s mothers there, yes, it was a – it was an unusual dynamic. At times, you know – I once came back and I was lying on – you know, it was 10 o’clock, I went upstairs and Ms Menuhin was lying – Ms Menuhin’s mother was lying on my side of the bed and I went to get undressed and take my tie off and, you know, just – I just naturally expected that she would move over but, no, she just remained. And I sort of said, “Look, do you mind if I go to bed now?” and – and, yes, reluctantly she moved. It was a very – it was a quite unusual scenario to be in, and that happened on at least one occasion where I literally felt like, hang on a minute, this is my marital bed, my home, you know, and here’s Ms Menuhin’s mother kind of parking herself there and then on the bed.
[9] Transcript day 6 dated 2 March 2021, page 409 at lines 35-45.
The parties had a number of arguments around this time, as they had on and off throughout the course of their relationship. The dynamic between them did not change. They each expressed their displeasure to each other. Some examples are necessary:
(a)on one occasion, the wife had gone to the fridge to discover that the husband had eaten a vanilla slice that she had been saving for herself. She sent him a text in which she said “you deserve to get fat and die. Vanilla slices, yoghurts, cigarettes, booze. Disgraceful, disrespectful and repulsive. You only have yourself to blame.” The husband responded: “that’s a bit harsh”. The wife responded “No. You need a harsh reality check. You are out of control.” The husband responded: “woah take it easy”. And the wife replied: “that slice was my treat that I was saving, because I couldn’t have it the last two nights. You had yours, pig”; and
(b)a not dissimilar exchange occurred when the wife discovered that the husband had eaten Y’s yoghurt and had left cigarette butts in his clothes. The husband communicated with the wife as to the yoghurt, that it wasn’t labelled, and that he thought he could have it. The wife replied “Fuck off. You knew it wasn’t. Why else would it have been hidden? You are a disgusting pig. Pulling cigarette bits out of the clothes dryer this morning was similarly repulsive. You disgust me. Please stop.” The husband’s response to the wife’s aggressive text was “you speak in harsh tongues.”
The wife’s communications were angry and frustrated. The wife may well have had good cause to consider the husband’s behaviour inconsiderate of her. Her communications were not those of a frightened woman however.
Not long after this, and on the night before X’s birth, the parties had an argument about baby names. This argument occurred over the telephone. The argument was upsetting to the wife and was the argument of … 2017 to which the maternal grandmother referred in her evidence. During the course of that phone call, the husband confirmed with the wife that he intended to work the following morning, being the day on which X was to be born. The wife remonstrated with the husband, wondering why he would work on the day his child was being born. From the husband’s perspective, he had time to walk from one hospital to another, work, and return to the wife in ample time for the birth of X. The wife could not comprehend the attitude of the husband. She felt it necessary in her affidavit evidence, to include the husband’s behaviour in this instance as an example of the husband’s controlling behaviour. The wife did not include in her affidavit evidence, but conceded in cross-examination, that the husband did not proceed to work as proposed by him on that day. He arranged for a colleague to handle the work instead. He stayed with the wife as she had requested. But the wife remained, and remains, unhappy, saying of the husband “he only made the decision in the car on the way to the hospital…” The wife added that in the course of making the decision, and their argument about it, the husband was “yelling at me. Bashing the steering wheel and the dashboard”, and had called her “a cunt”. The wife described this trip in the car as a clear example of family violence. The husband denied that he yelled at the wife; bashed the steering wheel and the dashboard; and that he called the wife “a cunt”. His evidence was that he understood her to be in need of support. He acceded to her wishes and looked forward to the impending birth. His evidence is accepted.
As did her mother’s evidence in a more limited way, the wife’s evidence contained many examples of the parties’ arguments, both historic and otherwise. It is not necessary to traverse each and every part of this evidence in these reasons. When the husband’s behaviour in 2017 was “pissing in the sink”, the wife was perhaps understandably disgusted, and let him know. She called him “a repulsive creature” and told him “…IT IS NOT ON. There is no excuse for such revolting behaviour.” The wife agreed in cross examination that this was not a woman, as she had described herself in her dealings with the husband at this time, who was “treading on eggshells.”
When the husband yelled at the wife and called her a “cunt”, as he conceded he did when referring to her action of getting rid of furniture which had great sentimental value to him, such argument proceeded in front of the maternal grandmother, as described by her in the evidence above at paragraph 64. The furniture had been in the husband’s family for decades. He had used it as a child, “drew my pictures” on it and treasured it. His parents had given the furniture to the parties. The wife replaced it with new furniture. The husband admitted he behaved badly. He admitted he described it as a “divorceable offence.” He admitted he slammed his fist on the table, and stamped his feet. The response of the husband to the furniture replacement was not appropriate, clearly, and was later regretted by the husband. He said “I was tired. I was cranky” and conceded his behaviour was poor. After his outburst however, the husband took the furniture which the wife had determined needed to be replaced and put it out on the “great graveyard of furniture on the verge”[10] for a hard rubbish collection. This fact was omitted from the wife’s description of the event in her affidavit evidence as it was omitted from her mother’s evidence. Some days after the event, the wife, who remained angered by the husband’s behaviour, in another exchange with the husband about matters on which they disagreed, sent text messages to the husband that were aggressive in tone telling the husband “how dare you” and “what’s wrong with you? APOLOGISE. And don’t pull that aggressive tone with me”. She was not, at the time and as conceded by her, frightened of him.
[10] Transcript day 7 dated 3 March 2021, page 445 at lines 2-3.
The year 2017 was also a very busy time for the husband in his workplace. The husband had toward the latter part of the year reduced his workload by resigning his position at the KK Hospital in order to commute less and spend more time with the family. He nevertheless needed to work harder at that time at LL Hospital where the work performed by him was emergency work. The husband’s evidence as to the period between the day of X’s birth, and 31 December 2017 was, relevantly, as follows:
… So I was coming home when I could during the day or at night time when I could and the extra work, the gruelling work, the extra work that I was taking was being done into the wee hours, you know, including 2 AM, 3 AM and I would come home and sleep a couple of hours and do it all again. So the effort was absolutely there and the work was also there. That’s why it was a very stressful time for all concerned: new baby, Ms Menuhin, me, work, lots of work…– I was burning the candle at both ends. But, yes, I was making the effort to come home.
On Christmas Eve 2017, the parties had another argument when at the husband’s parents’ home. The wife wished for the parties to take home a large flat pack gift, given to the children by the husband’s parents. It was late and the husband indicated that he would return the next day to collect the gift. The wife’s evidence was that the husband became angry and enraged by her request to take the gift that night, and that he yelled at his mother.[11] She did not add in her evidence that the husband did as the wife desired on that night, which was to put the flat pack gift in her car. That evidence was required to be obtained under cross-examination. The wife then added that the husband had “thrown” the gift in her car. The husband’s evidence was that he did not yell at his mother, nor become angry in his demeanour as described by the wife. He did not “throw” the gift. The Court accepts his evidence. Furthermore, the following morning he assembled the gift for the benefit of the children and the wife.
[11] Transcript day 2 dated 17 November 2020, page 119 at lines 11-12.
These various arguments had between the parties in late 2017, the wife described as incidences of family violence, that, together with her claim that the husband had no bond with the children, indicated the husband could harm the children to punish the wife at separation. It was this which formed the basis of her complaint for an intervention order in early 2018, wherein she stated, relevantly, that she was fearful the husband would “attack my son as a punishment.”
The husband and wife remained in their home together with their children from Christmas Eve 2017 until 8 January 2018, when the wife left the home to take the children with her for a holiday to Perth. That holiday was one taken as supported by the husband. Indeed, the holiday was to have been a family holiday with the husband accompanying the family. In mid-December 2017, the husband indicated to the wife that he could not travel with the family, due to his work commitments. The wife said in her evidence that the husband “reneged at the last minute” and that again he had failed to show interest in the family. In this period from late 2017 to 8 January 2018, the wife felt no need to obtain an urgent interim intervention order against the husband. She was in fact critical of the husband for remaining in Melbourne and not accompanying the family to holiday in Perth. By the time of her departure for Perth, however, the wife had determined to leave the marriage. The wife and children, in January 2018, remained in Perth for a six week duration holiday. Whilst in Perth the wife discussed with her mother her proposed separation from the husband, and determined that she would bring about the separation upon her return home. When the wife returned from Perth in Feb-2018, she attended upon her solicitor for advice as to how to put that separation into effect. The wife filed a complaint for an Intervention Order on 5 March 2018, approximately 3 weeks after her return from Perth.
On 6 March 2018, the husband was removed from the matrimonial home by virtue of the ex parte intervention order as obtained by the wife. The wife made arrangements with the police for the husband to be served at the parties’ home on a morning when she knew the husband would be home, exhausted, and in bed sleeping. She had already exited the home with the children as she awaited the departure of the husband from the home as accompanied by the police. By this means the wife obtained sole use and occupation of the former matrimonial home. On the following day, 7 March 2018, the husband received the first of voluminous correspondence that was to come from the wife’s lawyers. He understood from the correspondence that the parties were separated and that the wife wished to discuss parenting and property matters. The husband instructed lawyers to write to the wife on 9 March 2018 proposing a mediation. The wife declined that proposal. On 17 April 2018, the husband was advised by the wife’s solicitors that she sought to relocate the residence of herself and the children to Perth. The husband replied that he did not consent to the proposed relocation of the children. The wife accepts now that the husband wants a relationship with his children “because they’re his children and he is their father and he values that connection and relationship” and “he loves them and they are his kids and he wants to be in their life”.
On 4 April 2018, the wife proceeded on her path to obtain a final intervention order. She had by that time separated from the husband and had him removed from the home. The parties had attended changeovers together with the wife delivering the children to a local park to the care of the husband, and the husband returning them to the care of the wife without incident. On 7 April 2018, the parties commenced to communicate about the children by SMS. Those communications were entirely appropriate although the wife on two occasions, made complaints to the police about the husband breaching the IVO on the basis of SMS texts received by her from the husband. Twice the husband was arrested and fingerprinted by police with respect to the sending to the wife of those texts. Nothing came of those complaints of the wife. The husband was not charged with any offence and no further action was taken by the police. Those arrests caused great embarrassment and stress to the husband.
On 6 June 2018, the wife filed her initiating application and sought the trial be expedited. By 14 June 2018, the wife had commenced to record the changeovers that took place in respect of the children as between the parties. The wife admitted that when she commenced to record such changeovers, they were uneventful. She then altered that evidence to say that some of the changeovers had not been so straightforward. She gave evidence that she thought she would “just record them discreetly so that I would have that available in case, you know, something went bad or he reacted badly or did what he had, sort of, done in the past…” The wife never told the husband that she was recording the changeovers. The wife was intent on gaining evidence adverse to the husband. If she thought he was prolonging changeovers, in her mind, that was unacceptable behaviour. Whilst the wife denied it in evidence, when put to her by Senior Counsel for the husband, that in respect of the most ordinary, usual interactions between the wife and the husband, the wife attributed some sort of sinister intent or purpose, the Court finds on the evidence that this was so. When the husband commenced filming changeovers in November 2018, in full view of the wife and thus with her knowledge, the wife considered that appalling behaviour. The husband started such activity after being arrested and fingerprinted with respect to the wife’s complaint as to his breach of the IVO in November 2018. His reason for engaging in such behaviour was obvious. The wife was accusing him of a breach of the intervention order at changeovers by the manner of his communication with her. He needed, by that time, to protect himself in some way.
On 15 June 2018, the parties were again in the Magistrates Court for a further directions hearing in respect of the wife’s ongoing intervention order application. On the day following, 16 June 2018, the husband sent to the wife photographs of the children, and messages in respect of them. The husband said:
Thanks Ms Menuhin. I have some mail address[ed] to the Menuhin family that I will give to you tomorrow. This is from N School. I hope you may be able to pass on any correspondence from U School or MM School. I know you want to go to Perth, but it would be best to ensure Y has a kindergarten place available near home in Melbourne for 2019. Have you made any other applications? Would you like me to investigate? I would appreciate if you could please let me know your thoughts and we can make these decisions together. Thanks again for letting me know about tomorrow, much appreciated. Also, if [you] prefer that I don’t attend the vaccinations, I understand. I could then just do the next lot with the kids myself and we can alternate?
Although the wife had agreed to this form of communication between the parties, she considered it intrusive and did not particularly want it. It was her view that the husband should have communicated such information via his lawyers, regardless of the obvious costs consequence. The wife instructed her lawyers to write to the husband on 19 June 2018 advising that the SMS was inappropriate as was the husband’s forwarding of photographs of the children; and that he was being harassing at changeovers. The wife threatened to report the husband to the police if the behaviour she complained of continued. Neither the photographs nor the message were matters for the police. The wife maintained in the giving of her evidence in November 2020, that those actions of the husband were criminal matters despite her earlier attempts to have them categorised as such being unsuccessful.
The separation of the parties in March 2018, left the husband “blindsided ” and “thrown into an absolute crisis.” His circumstances were very different to that of the wife. As the wife said in her own evidence, she had much earlier determined that the relationship between the parties was over. The wife had seen a lawyer in late 2017 to obtain advice. At that time, Y was aged approximately two years and X had only recently been born.
The orders sought by the husband is contained in his closing submissions on behalf of the Respondent husband filed on 29 March 2021.
PARENTING - ORDERS SOUGHT
1.All previous orders be discharged.
Parental Responsibility
2.That the parties retain equal shared parental responsibility for the children Y born … 2015 and X born on … 2017 and in exercising such responsibility each parent ensure they communicate in writing to:
(a)provide the other parent with sufficient advance notice of any decision to be made and their proposal;
(b)provide the other parent with information to enable that parent to make an informed decision about their proposal;
(c) provide the other with their views;
(d) give due consideration to the views and proposals of the other parent; and
(e)make a genuine attempt to come to an agreement about the proposed decision or course of action.
Living Arrangements
3. The children live with the Wife.
4. The Wife’s application to relocate the children’s residence to Perth be dismissed.
School terms
5. The children spend time with the husband during school terms as follows:
(a)For the balance of the 2021 school year, in the same fortnightly pattern as preceding years:
(i)in Week 1 from the conclusion of kindergarten/school Friday (or 8.30am if a non-kindergarten/school day) until the commencement of kindergarten/school Monday (or 7.30am if a non-kindergarten/school day); and
(ii) in Week 2:
(1)Thursday from 2.30pm for X, and from the conclusion of school for Y, until 6.30pm;
(2)from Sunday 8.30am until the commencement of kindergarten/school Monday (or 7.30am if a non-kindergarten/school day);
(b)During the 2022 school year :
(i)in Week 1 from the conclusion of kindergarten/school Thursday (or 3.30pm if a non-kindergarten/school day) until the commencement of kindergarten/school on Monday (or 7.30am if a non-kindergarten/school day); and
(ii)in Week 2 from the conclusion of kindergarten/school Thursday (or 3.30pm if a non-kindergarten/school day) to the commencement of school/kindergarten Friday (or 7.30am if a non-kindergarten/school day);
(c)During the 2023 school year :
(i)from the conclusion of school Thursday (or 3.30pm if a non-school day) until the commencement of school Tuesday (or 7.30am if a non-school day); and
(ii)from the conclusion of school Thursday (or 3.30pm if a non-kindergarten/school day) to the commencement of school Friday (or 7.30am if a non-kindergarten/school day);
(d)From the commencement of the 2024 school year and thereafter, from the conclusion of school Thursday (or 3.30pm if a non-school day) until the commencement of school Wednesday (or 7.30am if a non-school day).
(e)As may otherwise be agreed between the parties in writing.
School Holidays
6.The children spend one week with the husband during the Term 1 and Term 3 School Holidays as follows, unless otherwise agreed in writing:
(a)the first week of the Term 1 holidays in 2022 and the last week of the Term 1 holidays in 2023, and alternating thereafter;
(b) the first week of the Term 3 holidays each year.
7.The children spend two weeks with the husband during the long summer holidays (inclusive of Christmas in alternate years) as follows, unless otherwise agreed in writing:
(a)In 2021/2022 and each alternate year thereafter from 10am 24 December to 6pm 7 January;
(b)In 2022/2023 and each alternate year thereafter from 10am 27 December to 6pm 10 January;
Special Occasions
8.That notwithstanding any other order to the contrary, the children spend time with the husband on special occasions as follows:-
(a)on the husband’s birthday if a school day, from the conclusion of kindergarten/school to 7.30pm, and should the children already be in the husband’s care on the wife’s birthday, their time with the husband be suspended from the conclusion of kindergarten/school to 7.30pm if a school day or from 9am to 6pm if a non-school day;
(b)on Father's Day from 9am to the commencement of school Monday and should the children already be in the husband’s care on Mother’s Day, their time with the husband be suspended from 9am Mother’s Day until the commencement of school Monday;
(c)on the children’s birthdays from the conclusion of kindergarten/school to 7.30pm if a school day or from 1pm to 6pm if a non-school day, and should the children already be in the husband’s care on the children’s birthdays, their time with the husband be suspended from the conclusion of kindergarten/school to 6pm if a school day or from 1pm to 6pm on a non-school day;
(d)as may otherwise be agreed between the parties in writing.
Changeover
9.Where changeover does not occur at kindergarten or school, changeovers be facilitated by Mr D, or such other employee/s from M Contact Services as nominated by Mr D from time to time, at the parties’ equal expense, until the commencement of the 2023 school year; and thereafter the party having the care of the children shall deliver them to the other parent’s residence at the conclusion of their time with the children.
Resumption of Time
10.That the children’s time with the husband during school terms shall resume after any school holiday period in the same fortnightly cycle as if the school holidays had not occurred.
Telephone Communication
11.That unless otherwise agreed between the parties, the parties each be at liberty to communicate with the children by Skype/telephone/WhatsApp/Facetime once each day whilst the children are in the other party’s care for a period not exceeding 30 minutes, and at any other reasonable time as requested by the children, with the party having the care of the children to facilitate the children’s communication with the other party in accordance with this Order.
Education
12.That the parties do all things and sign all documents necessary to maintain the children’s enrolment at N School for their primary and secondary education, unless otherwise agreed between the parties in writing.
13.That subject to any policy of the kindergarten/school, the parties forthwith irrevocably authorise and direct the children’s kindergarten/school to communicate with, and provide information directly to, the other party, including regarding any absences and injuries sustained by the children, and upcoming school, extra-curricular or sporting events and each party be at liberty to:
(a)obtain school reports, school notices, school newsletters, school photographs, and the like
(b)attend all school activities, functions and all extra-curricular activities to which parents are ordinarily invited or encouraged to attend.
Health
14. That each party shall:
(a)advise the other of any medical or allied health appointment scheduled for the children, as soon as practicable upon such appointment being made;
(b)advise the other as soon as practicable and not more than twenty-four (24) hours after the event, of any serious illness or injury suffered by the children and the contact details of any health professional attending upon the children;
(c)keep the other party advised of the contact details of any medical or allied health practitioners treating, or consulting, the children;
(d)provide to the other party any reports they receive from any medical or allied health practitioner as soon as practicable upon such reports being issued;
(e)do all things and sign all such documents necessary to authorise all medical and allied health practitioners to communicate directly with the other party regarding the children;
(f)be at liberty to attend all specialist medical appointments made for the children, or otherwise communicate with such specialist with respect to all such appointments.
Travel
15.That each party be at liberty to travel interstate or overseas with the children during their respective time with the children, provided that:
(a)such travel occurs on non-school days;
(b)the party travelling provides the other party with at least 48 hours written notice of the intended interstate travel, together with contact details of where the children will be staying;
(c)the traveling party provides at least 42 days written notice of the intended international travel, and:
(i)not less than 14 days prior to departure, provides a copy of the itinerary, all flight tickets and contact details of where the children will be staying;
(ii)the destination is not contrary to any travel advisories issued by the Australian Department of Foreign Affairs and Travel (“DFAT”) and/or any equivalent government bodies of the destination country
(d)the travelling party facilitates telephone communication between the children and the non-travelling parent in accordance with Order 11 herein.
Passports
16.That each party do all things and sign all documents necessary, at the parties’ equal expense, to obtain and maintain an Australian passport for the children;
17.That each party do all things and sign all documents necessary, at the husband’s expense, to obtain and maintain a Country O passport for each of the children, including if necessary, for the purposes of obtaining such passport, a Country O Birth Certificate.
18.That the Wife hold the children’s Australian Passports and the husband hold the children’s Country O Passports.
19.That to facilitate the travelling party’s travel with the Children pursuant to Order 15 herein, the non-travelling parent must do all things necessary to facilitate the intended travel, including providing the children’s passport and/or birth certificate 21 days prior for the purposes of booking the necessary travel arrangements.
Miscellaneous
20.That each party shall notify the other within 24 hours of any change to their mobile telephone and email address and provide at least 21 days’ written notice of any proposed change of residential address.
21. That each party, their servants and agents, be and are hereby restrained from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other party to, or in the presence or hearing of the children, and allowing the children to remain in the presence or hearing of any third party engaging in such behaviour;
(b)discussing these family law proceedings with, or in the presence or hearing of the children, and allowing the children to remain in the presence of, or within earshot of, any third party engaging in such behaviour, save for explaining time arrangements pursuant to these Orders;
(c)showing or leaving accessible to the children, any document connected with these proceedings; and
(d)showing to or leaving accessible to the children, messages, emails or other written communication, between the parties.
IN EVENT CHILDREN ARE RELOCATED TO PERTH (alternative to Orders 6 to 9 herein)
22. The children spend time with the husband:
(a)During school terms in Perth for one weekend per month in a four-week cycle (commencing on what would otherwise be Week 1 of the fortnightly cycle in preceding years), from the conclusion of kindergarten/school Friday (or, at the husband’s election, from 8.45am if a non-kindergarten/school day) until 5.45pm Sunday (or, at the husband’s election, 5.45pm Monday if a non-kindergarten/school day).
(b)During the school term holidays, in Melbourne for one week each year as follows:
(i)the first week of the Term 1 holidays
(ii)the last week of the Term 2 holidays
(iii)the first week of the Term 3 holidays
(c)During the long summer holidays, in Melbourne for two weeks from 24 December until 7 January in odd years and from 27 December until 10 January in even years.
(d)at such other times as agreed between the parties in writing.
23.Where changeover does not occur at kindergarten or school, changeovers be facilitated by an independent changeover agent until the commencement of the 2023 school year at the parties’ equal expense; and thereafter the party having the care of the children shall deliver them to the other parent’s residence/hotel at the conclusion of their time with the children, subject to paragraph 24 herein.
24.For the purposes of the children spending time with the husband during school holidays and unless otherwise agreed between the parties in writing:
(a)changeover occur at Melbourne airport at the commencement of their time with the husband at her expense;
(b)changeover occur at Perth airport at the conclusion of his time at his expense;
(c)each party shall provide to the other at least 7 days prior, a copy of the flight tickets particularising the times of the children’s flights.
25.That the parties do all things and sign all documents necessary to enrol and maintain the children’s enrolment at AR School Perth for their primary education and AV School Perth for their secondary education, unless otherwise agreed between the parties in writing.
FINANCIAL - ORDERS SOUGHT
The Suburb F Property
1.That within 90 days from the date of these Orders (“the Date”), and, contemporaneously:
(a)the Wife do all things and sign all documents necessary to transfer to the husband, at the Husband’s expense, all of her right, title and interest in E Street Suburb F, Victoria
(“Suburb F Property”);
(b)the husband do all things and sign all documents necessary to refinance and discharge the mortgage secured by the Suburb F Property, at the husband’s expense;
(c)to the extent that the Suburb F Property is being used for cross-collateral borrowings, the parties do all things and sign all documents as necessary to secure a release of the Wife from any and all liability with respect to any and all cross-collateral borrowings and the husband is thereafter to retain sole liability for any and all cross-collateral borrowings.
(d)the husband pay or cause to be paid to the Wife the sum of $1,789,681 (“the Sum”) by way of PEXA transfer.
2.That in default of the husband paying the Sum to the Wife by the Date, the Suburb F Property forthwith be placed on the market to be sold on terms as agreed between the parties in writing
(“Default Sale”) and in default of agreement:-
(a)at a reserve of $3.2 million
(b)by such real estate agent as agreed between the parties in writing and failing agreement, as recommended by the President of the Real Estate Institute of Victoria, or his or her nominee
(“the Agent”);
(c)by auction on the earliest date available to the Agent or by such other sale method as agreed in writing;
(d)the Agent be directed and authorised in writing to communicate with each of the parties contemporaneously as to all aspects of the sale, inclusive of all offers received and all feedback from potential purchasers;
(e)at a reserve price agreed between the parties in writing in consultation with the Agent, and failing agreement as recommended by the President of the Real Estate Institute of Victoria, or his or her nominee;
(f)the parties each be and are hereby restrained from disclosing the reserve price to any third party prior to the reserve being exceeded at auction;
(g)the parties each be and are hereby restrained from selling the property at a lower price than the reserve price, save with the written consent of the other party first obtained;
(h)on an unconditional Contract of Sale providing for a settlement of no more than ninety (90) days unless otherwise agreed by the parties in writing;
(i)in the event the Suburb F Property is not sold at auction then the property is to remain on the market for private sale thereafter as agreed between the parties; and
(j)the parties have liberty to apply in relation to the Default Sale.
3. That upon settlement of the Default Sale, the proceeds be disbursed as follows:-
(a)firstly, in payment of all costs and commissions of the Default Sale;
(b)secondly in payment of such sum as is required to discharge the mortgage and any other encumbrance secured by the Suburb F Property;
(c)thirdly, in payment of all outstanding rates, taxes and/or outgoings in relation to the Suburb F Property;
(d)fourthly, in payment of the Sum to the Wife, together with interest in accordance with the Family Law Rules, subject to Order 4 herein; and
(e)fifthly the balance then remaining to the husband, subject to Order 4 herein.
4.In the event the Suburb F property is sold for more than $3.2 million, the Wife shall receive in addition to the Sum, 50 cents of every dollar above $3.2 million and in the event the Suburb F property is sold for less than $3.2 million, the payment of the Sum to the Wife shall be decreased by 50 cents of every dollar below $3.2 million.
5.That pending the payment to the Wife of the Sum or the settlement of the Default Sale (whichever is applicable):
(a)the Wife have sole use and occupation of the Suburb F Property;
(b)the husband shall solely meet all instalments in respect to mortgage repayments, rates, taxes, insurances and other apportionable outgoings of the Suburb F Property as and when they fall due and payable; and
(c)each party be restrained by injunction from further encumbering or otherwise increasing the level of borrowings secured against the Suburb F Property, save the purposes of the husband making the payment of the Sum.
Motor Vehicle 1 (Registration no. …)
6. That on or before the Date, the husband do all things and sign all documents necessary to transfer to the Wife, at the Wife’s sole expense, the motor vehicle (registration no. …).
The Husband’s Corporate Entities, Businesses and Trusts
7. That in relation to the following corporate entities, businesses and trusts:-
(a)G Company (ABN …);
(b)H Pty Ltd (ACN …);
(c)the H Trust; and
(d)any other corporate entities, businesses and/or trusts in which the parties have an interest,
(“the Entities”)
and contemporaneously with the Husband’s payment to the Wife of the Sum or the settlement of the Default Sale (whichever is the earlier), the parties do all things and sign all documents necessary for the Wife to resign any offices she holds in the Entities, relinquish any right and title in the Entities, and assign to the Husband any interest and/or entitlement she may have in the Entities (and the Husband duly accepts such assignment of the Wife’s interest and/or entitlement) inclusive of transferring to the Husband (and the Husband accepting transfer of) any credit and debit loan accounts, at the Husband’s sole expense.
8.That the Husband indemnify and keep indemnified the Wife in respect of all past, present and future liabilities (including but not limited to income tax, goods and services tax, capital gains tax, penalties and interest) and/or any demand for repayment of any loan accounts which may arise, or may have arisen, as a consequence of:
(a)the Wife having or having had an interest in the Entities;
(b)by reason of any officeholding, position and/or distributions and/or beneficial entitlement (if any) the Wife may have or may have had previously have had in the Entities;
(c)any distributions and/or dividends paid to the Wife by the Entities, either before or following the date of these Orders.
9.That the Husband be and is hereby restrained from causing any of the Entities from causing any distributions, dividends or other payments to be made to the Wife.
Superannuation Split (Base Amount Split)
10.That the Wife receive a base amount split of $195,434 from the Husband’s superannuation entitlements, in accordance with Orders 11 to 14 herein, in order to effect an equalisation of the parties’ respective superannuation entitlements.
11.That Orders 10 to 14 (inclusive) hereof are binding upon K Company (ABN …, AFSL …), being the Trustee of the K Super Fund (ABN …) (“the Trustee”).
12.That pursuant to Section 90XT(1)(a) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable in respect of the interest of Mr Menuhin (“the Husband”) in the Member … – Super (Employer Sponsored) account …61 ("the Husband’s Superannuation interest"), the Trustee shall pay to Ms Menuhin (“the Wife”) or her legal personal representative the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $195,434 and there should be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.
13. That paragraph 12 hereof has effect from the operative time.
14.That the operative time for the purposes of these orders is the fourth business day after the date of service of a copy of these sealed Orders upon the Trustee.
15. That a sealed copy of these Orders be served upon the Trustee by the Wife’s lawyers.
16. That until the happening of any of:
(a)the transfer or (“rolling over”) into another superannuation fund of the payment split created by these Orders or the transfer or into another superannuation fund of the Wife’s entitlements as the case may be;
(b)the Wife satisfying a condition of release and being paid the payment splits created by these orders; or
(c)the Wife executing a waiver of her rights within the meaning of Section 90XZA of the Act in relation to the payment splits pursuant to these Orders;
the Husband shall be and is hereby restrained by himself and/or his agents from executing a binding death benefit nomination in favour of any person or doing any other act or thing which would render any part of his interests in the Fund a “non-splittable payment” within the meaning of the Family Law (Superannuation) Regulations 2001.
Husband’s Chattels and Personal Effects
17.That the Wife otherwise retain to the exclusion of the Husband the household contents in the Suburb F property, save for the following items which shall be made available by the wife for collection by the husband or his agent upon the payment of the Sum:
a.his clothes (including suits) and shoes;
b.his boxes of personal paperwork including his notes and academic degrees;
c.his personal books including his medical text books;
d.his iMac desktop computer;
e.the Husband’s “Artwork 1” painting;
f.the Husband’s “Artwork 2 painting”;
g.his sporting and camping equipment, including his bicycle and light blue down sleeping bag;
h.his antique table in the studio;
i.his windsurfer;
j.his rowing ergometer; and
k.any other personal possessions and effects of the Husband’s.
Omnibus
18.That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:-
(a)each party be solely entitled to the exclusion of the other to all other real and personal property (including choses-in-action and shares) registered in the name of or in possession of such party, or to which that party is legally or beneficially entitled, as at the date of these orders;
(b)monies standing to the credit of the parties in any bank account are to become the property of the party in whose name the account is registered;
(c)each party retain for their sole use and benefit any superannuation or employment related benefits accrued in their sole name;
(d)insurance policies remain the sole property of the owner named therein;
(e)each party 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;
(f)each party be solely responsible for any liability of whatsoever nature and kind in their respective names, including but not limited to any credit card liability, and
(g)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
s. 106A Order
19.That in the event either party fails to execute any deed, document or instrument necessary to give effect to these Orders, within 7 days of that deed, document or instrument being forwarded to either party by post and by email, then in order to give full force and effect to the terms of these Orders, the Registrar of the Family Court of Australia at Melbourne be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the party that has failed to execute any deed, document or instrument necessary to give effect to these Orders upon the Registrar being provided with verification of such failure by way of affidavit, and the non-defaulting party shall be at liberty to make an Application for Costs against the defaulting party.
SPOUSAL MAINTENANCE
20.That the Husband pay or cause to be paid to the Wife, for the maintenance of the Wife, a lump sum of $156,000, contemporaneously with the payment of the Sum (subject to Order 21 herein).
21.That in the event the Wife is permitted to relocate the children’s residence to Perth, the Husband pay to the Wife, for the maintenance of the Wife, a lump sum of $52,000, contemporaneously with the payment of the Sum.
CHILD SUPPORT
22.That the Husband pay to the Wife periodic child support in accordance with any relevant administrative assessment (Ref: …) issued by the Child Support Agency, with respect to the payment of child support for the Children.
23.That in addition to Order 22 herein, and pursuant to section 123(1)(a) of the Child Support (Assessment) Act 1989 (Cth) (“CSAA”) the Husband pay or cause to be paid direct to the provider where possible, or in reimbursement to the Wife within seven (7) days of the provision of receipts to the Husband by the Wife, to the Wife’s nominated bank account, the following by way of child support in a form other than periodic support for the children:
(a)100% of all compulsory school fees and levies;
(b)100% of all books, uniforms, and technology equipment;
(c)100% of school camps, school excursions and agreed school extra-curricular activities;
(d)100% of the children’s private health insurance premiums and ambulance cover, at the current level of cover; and
(e)100% of all out-of-pocket and non-relatable hospital, medical and dental expenses.
24.The child support ordered to be paid by the Husband by way of Order 23 herein does not reduce the annual rate of child support liable to be paid by the Husband under any relevant administrative assessment (Ref: …) issued by the Child Support Agency with respect to the payment of child support for the Children, as assessed by the Child Support Agency from time to time.
25. All extant applications be otherwise dismissed.
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