Stroud and Stroud

[2007] FamCA 73

FAMILY COURT OF AUSTRALIA

STROUD & STROUD [2007] FamCA 73

FAMILY LAW - PROPERTY SETTLEMENT - Contributions

Family Law Act 1975 (Cth)

APPLICANT: Mrs Stroud

RESPONDENT: Mr Stroud

FILE NUMBER: MLF 1240 of 2005

DATE DELIVERED: 9 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 6 & 7 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wraith

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr Edmunds

SOLICITOR FOR THE RESPONDENT: Lou Castellano

Orders

CHILDREN’S ORDERS;

1. The children of the marriage, D born in August 1990 and E born in June 1993 live with the wife.

2. The husband and the wife shall retain equal shared parental responsibility for the children.

3. The husband shall spend time with and communicate with the said children in accordance with their wishes.

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

PROPERTY ORDERS:

1. The husband shall ensure that the net sale proceeds of the M development receivable by G Pty Ltd as trustee for the S Family Trust shall forthwith upon receipt be wholly applied towards reduction of the Viridian line of credit secured by CBA mortgage (“the Viridian mortgage”) over the property at L (the real property”).

2. The husband shall be solely responsible for discharging the balance of the Viridian mortgage and shall indemnify and keep the wife indemnified in relation to it.

3. Contemporaneously with the payment by the husband referred to in paragraph 5 of these orders:

   (a)The wife shall pay to the husband the sum of $47,262 (“the payment”);

   (b)The wife shall do all acts and sign all documents so as to discharge the balance of the loan and mortgage with CBA (“the CBA loan”) and she shall indemnify and keep the husband indemnified in relation to it;

   (c)The wife shall do all acts and sign all documents so as to transfer to the husband all her right title and interest in the parties’ P, C and W shares; and

   (d)The husband shall do all acts and sign all documents to transfer to the wife all his right, title and interest in the real property.

4. In default of the wife making the payment referred to in paragraph 7 hereof the real property shall be sold within 60 days by public auction and the proceeds applied as follows:

   (a)Firstly in payment of selling and conveyancing costs and expenses;

   (b)Secondly, to complete the payment to the husband together with interest at 12% calculated from the date the husband discharges the Viridian mortgage; and

   (c)Thirdly, the balance to the wife.

   and each party shall have liberty to apply to the court in relation to arrangements to effect the sale.

5. From the wife’s share of property or monies, the sum of $21,840 represents capitalised spousal maintenance pursuant to s.77A of the Family Law Act 1975, the sum of $3,600 is by way of arrears of spousal maintenance, and otherwise all orders for spousal maintenance shall be discharged and any claims for future lump sum or periodic spousal maintenance shall be dismissed.

6. That the outstanding school fees payable by the parties to T College (“[TC]”) shall be paid as follows:

   (a)First from the funds currently frozen in the parties joint account number … in the sum of $6,162 plus any accrued interest thereon; and

   (b)Secondly, the balance from the monies held in trust by the wife’s solicitors pursuant to orders made 5 May 2005 (“The [W] proceeds”).

7. That the wife shall do all acts and sign all documents so as to resign as a director of G Pty Ltd and to transfer all her right title and interest (if any) in the S Family Trust and in any beneficiary loan accounts of the said trust to the husband.

8. That unless otherwise specified in these orders and save for the purpose of enforcing payment of any monies due under these or subsequent orders:

   (a)Each party shall be solely entitled to the exclusion of the other to all real and personal property (including choses in  action) registered in the name of such party or in the possession of such party or to which that party is legally or beneficially entitled as at the date of these orders or to which they may become subsequently entitled;

   (b)Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

   (c)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other.

9. That all existing applications shall be otherwise dismissed.

10. That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

IT IS DIRECTED

1. That the case shall be removed from the Pending Cases list.

BY CONSENT IT IS ORDERED

1. That within 21 days hereof the husband shall do all such acts and things and sign all necessary documents to transfer to the wife all bank accounts held in the names of the children:

   (a)D born in August 1990; and

   (b)E  born in June 1993.

2. That the wife shall make available for inspection by the husband family photographs and photographs of the children by providing same to the offices of her solicitor within 30 days.

3. That the husband thereafter arrange for the said photographs be copied at the husband’s expense.

4. That the wife shall return the husband’s e-Tag device as soon as possible.

IT IS NOTED

A.That all original photographs will be returned to the wife and retained by her.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1240  of 2005

Mrs Stroud  

Applicant

And

Mr Stroud

Respondent

REASONS FOR JUDGMENT

1. The parties cannot agree on a property settlement after their 18-year marriage.

1. There are four steps for me in a property case:

   ·First, I must establish the assets and liabilities.  In this case they are mostly agreed, the areas of disagreement being as to how a few small items should be treated. 

   ·Secondly, I must consider contributions.  The wife says she made the greater initial contribution and that her family made contributions during the marriage.  She says that contributions should be decided 55% /45% in her favour.  The husband disagrees with her version, and says that overall contributions should be regarded as equal.

   ·I must consider the section 75(2) and other factors.  The wife says there should be an adjustment in her favour of between 15% to 20% of the asset pool to reflect her responsibility to the children, the disparity in income earning capacity, and each party's capacity into the future.  The husband concedes there should be an adjustment in the wife’s favour, but puts it at 5% to 10% of the asset pool.  The parties also disagree how superannuation should be treated. 

   ·The final step for me is to arrive at a decision that is just and equitable in all the circumstances.  The wife wants to receive a greater share of the existing assets in order to retain the home for herself and the children.  The husband wants access to some of the existing assets in order to be able to re-establish himself.

BACKGROUND

1. The husband is Mr S.  He is a 49-year-old sales representative.  He earns over $70,000 per annum, plus an annual bonus that varies year to year. 

1. The wife is Mrs S.  She is aged 45, and is engaged in home duties. 

1. The parties married in September 1988.  They separated in March 2005 and divorced in October 2006.  They have two children, D aged 16 and E aged 13.  Both children live with their mother in the former matrimonial home.  Unfortunately, neither child sees their father at present.  E has not seen him since separation, D since December 2005. 

1. Since separation, the husband has paid the mortgage on the former matrimonial home and since April 2005 there has been an order for him to pay $140 per week by way of spousal maintenance.  He has wrongly allowed arrears of $3,600 to build up.  Ultimately he agreed, as he should have, for the arrears to be paid from his share of the assets.

MATERIAL RELIED UPON

1. The wife relied upon the following:

   ·Her further amended application filed 11 December 2006

   ·Her affidavit filed 21 November 2006

   ·Her Form 13 filed 21 November 2006

   ·The affidavit of her brother Mr L filed 22 November 2006

   ·The affidavit of her sister Ms K filed 22 November 2006 (who was not required for cross-examination).

1. The husband relied upon the following:

   ·His further amended response filed 15 December 2006

   ·His two affidavits filed 22 November 2006 and 6 February 2007.

   ·His Form 13 filed 22 November 2006.

THE ASSETS AND LIABILITIES

1. The assets, liabilities and parties’ superannuation were all agreed, except in two respects.

1. The first dispute was as to how I should treat a sum of $16,789 in the husband’s bank account.  He says it represents savings since separation and therefore should not be brought into account.  The wife says that it should be included for three reasons.  First, since separation the husband has remained the “primary wealth-generator” whiles she has remained the “primary carer”.  Secondly, it is agreed that the parties had $2,000 in savings at separation that he retained.  Thirdly, the husband conceded in evidence that in December 2006 he received a $7,000-plus tax refund for a period in which the parties were living together for more than half of the time.

1. I do not propose adding those savings to the pool.  They have been acquired since separation and although the funds may include the savings and tax refund, the husband took responsibility for joint debt at separation, exceeding that combined sum.

1. The second small dispute concerned a sum of $13,000, salary sacrificed by the husband since separation to add to his N Superannuation account.  The wife says that the N superannuation should come into the pool at $98,247.  The husband says $85,385.

1. The husband built up that additional superannuation at a time when he was responsible for mortgage payments on the house in which the wife was living, child support, and spousal maintenance.  She did not contribute to it.  I will leave it out of the pool but it is relevant when considering the parties’ respective futures.

1. Accordingly, the pool of assets, liabilities, and superannuation is as follows:

   Assets

   V  $370,000

   CBA account  $    6,162

   Mercedes (Wife)  $    3,500

   W proceeds  $    4,349

   P shares  $    4,100

   C Shares  $    1,700

   W shares  $      783

   Sub total  $390,594

   Liabilities

   CBA loan  $ 14,957

   Citibank  $   5,000

   TC         (outstanding school fees)  $   9,956

   Sub total  $ 29,913

   Total Assets  $360,681

   Superannuation

   N (Husband)       $ 85,385

   O (Husband)  $ 57,589

   O (Wife)  $ 17,868

   Total Superannuation  $160,842

2. To complete the picture, I note there is a property at M being developed by the husband with partners.  A loan for his share of the project is secured over the former matrimonial home.  The parties have agreed that it is a project that should be put to one side, with the husband remaining responsible for the debt, and upon the ultimate sale of the property, he will retain a small profit, retain a small debt, or break even, depending on what occurs.

CONTRIBUTIONS

1. There is a dispute as to what the wife initially brought into the marriage, what the husband initially brought into the marriage, and whether their contributions during the marriage were equal, or the wife should be given credit for her family’s contribution.

1. As to the wife’s initial contribution, she said that she had $55,000 in savings.  Although quite meticulous with some of her record-keeping, she had absolutely no record to prove that sum.  She could only say that she reckoned it at $55,000, given that she had been living at home with her parents, was working, and had no expenses.  The husband’s recollection was that she told him at the time that she had about $30,000.

1. I accept the husband’s evidence as the more probable.  Any documents about this would have been available to the wife not the husband, both because they related to her savings, and because any documents (except the husband’s work and current project files) were retained in the former matrimonial home where she is living.  None were produced by her.  Importantly, her credibility was reduced in my eyes by the way she gave evidence as to the husband’s role in several building projects.  But I will return to the detail below.

1. It is agreed that the husband also brought an asset into the marriage.  The value is disputed.  He purchased a property at U in October 1987.  The wife swore she was sure it was October 1988, which would have put it after the date of marriage.  He always swore it was before, when he had just started going out with his wife.  A contract of sale showed he was correct.

1. The same contract of sale shows that the husband paid $91,500, plus costs for the purchase of the U property.  He was not able to produce documents about the financing of the purchase.  However I accept his claim as probable, that he had $20,000 to $30,000 in proceeds from the sale of a property he had previously owned in E, and that he borrowed a sum of $5,000 from his parents because on his earnings at the time, the bank would only lend him $70,000.  He said the property was sold in 1990, for $150,000 and that the loan, by then $65,000, was repaid, with the balance applied to the purchase of the parties’ first home.  The wife says it was sold for $120,000 but produces no records.  Where the versions differ, I prefer the husband’s account, for the reason already given. 

1. In 1988 the parties had the benefit of their first home, a unit in N, being built by the wife’s father and brother and sold to the parties at a favourable price.  The wife says they paid $120,000.  The property was registered in joint names, with a mortgage of $90,000.  She says it was sold 2½ years’ later for $189,000. 

1. The husband says it was purchased for $139,000 and sold for $175,000.  He does not disagree that her father and brother built it, and did not seem to dispute that they bought it at a discounted price.  But he says he contributed his labour, around his full-time work hours.

1. The wife produced no documents as to the purchase or sale price, save her father’s handwritten list of costs, totalling $240,000, which she says were halved between her and her sister, as there was an adjoining unit for her.  The sister supported the wife’s recollection.  When the husband recalls that the price was $139,000, it may be that he is including stamp duty and other costs.  They must have been paid, but I accept the unit itself cost $120,000.  The husband was wrong in his recollection that it sold for $175,000.  The Statement of Adjustments held by the wife showed it sold for $189,000 in December 1992.

1. The parties bought a property in D in 1993, sub-divided it, then renovated and sold the original house, and built and sold a unit on the other lot.  They seemed to do well on the deal.  The wife’s father and brother again worked on the construction. 

1. The wife described the husband’s contribution to the N and D projects as “minimal”.  The husband said he worked there in any spare time surrounding his working hours.  I was unimpressed with the wife’s evidence on this point.  It struck me as mean and grudging.  She repeatedly gave the same one-word answer, although to different questions, all to the effect that any contribution the husband made on the building sites was “minimal”.  It made me uneasy that her brother then used precisely that word, although, in cross-examination he departed from that to make at least some concessions about the husband’s contribution.  He agreed that he and his father taught the husband some basic building skills and that he worked, labouring as required at week-ends, although otherwise in full-time employment.  I prefer the husband’s version about his contribution.

1. Overall, I find the parties have made equal contributions.  The wife brought in $30,000, and over and above her general contributions as home-maker and parent, she should be credited as a result of the generosity and work of her family that contributed to a good start for the parties in their financial life together.  It is hard to know the extent of the discount that was extended to them when they paid $120,000 to the wife’s father.  Without expert evidence, I cannot guess at the movement in the property market, to try to assess the discount by looking at the sale price of $189,000 several years later.  Similarly, I am unable to estimate, without expert evidence, the precise value of the husband’s property brought in at the start of the marriage, but again conclude it was part of the parties’ good financial start.

1. Given the length of the parties’ marriage, and some of the necessary vagaries around the evidence and the movement of land prices at different times, I conclude that the parties’ contributions should be regarded as equal.  They each contributed to kick-start their financial lives, the husband with his property, the wife with her cash and family help.  That family help extended to the development of the parties’ first investment property in D.  Not only did the husband work alongside her family when he was able (and it is true that his skills did not compare with those of the wife’s father and brother), but he was then the instigator of other property developments largely conducted by him throughout the marriage, all over and above his full-time employment and assistance as home-maker and parent. 

1. Since separation the wife has made a significant contribution by caring for the children full-time, virtually without relief.  For his part, the husband has paid child support, and spousal maintenance (except for the arrears that he will now meet), and met the payments on the former matrimonial home mortgage.  It has reduced from $22,000 at separation to under $15,000 at the time of the trial.

1. For all purposes, I propose dealing with the parties’ contributions as equal.

SECTION 75(2) FACTORS

1. There is agreement that there should be an adjustment in the wife’s favour.  There are several reasons for that.  First, the wife not only has the responsibility for the parties’ 16 and 13-year-old children, but currently it is to the exclusion of the husband so her responsibility is substantial.  He does pay child support as assessed. 

1. The husband’s income-earning capacity is significant compared to the wife’s.  In addition to his income of around $70,000 per annum, he has the capacity to earn an annual bonus.  For last year he received $18,500 gross.  But he said that the amount varies markedly.  The last two years he has received $16,000 and $18,500 respectively, but the usual bonus has been between $5,000 and $7,000 gross per annum. 

1. The wife has been out of the workforce since before D’s birth, except for some modest part-time employment.  She is a 45-year-old woman with no up to date skills, although she can type.  Her income-earning capacity is significantly less than the husband’s but I make two observations. 

1. The first is that by the parties’ agreement, the wife will receive a capitalised spousal maintenance sum (equivalent to three years’ of maintenance) and I must be careful not to allow any duplication in my adjustments to her.  The second is that her evidence about any future work was unimpressive.  I accept that it is difficult for a woman to recommence a career, when she has been out of the work-force for many years.  However, the wife has been desultory in any efforts towards employment and I am left with the firm impression that she has shown little interest.  She now says that she would like some computer training, and with children at school full-time, I accept that it is open to her to seek and gain training and/or employment.  Still there will be a disparity between the parties’ earnings.  That disparity will be reflected long-term in their respective capacities to build superannuation.

1. It was said for the wife that the husband will be able to continue to build his finances by undertaking property development, in addition to his paid employment.  Unless he receives substantial capital from existing assets, he will not be well positioned to do so.  Projects in the past have been leveraged against existing assets.  The probability, at least in the short to medium term, is that he will be unable to do that.

1. The wife is keen to retain the former matrimonial home.  She says she has no borrowing capacity and retaining this home gives her the best shot to be able to house herself and the children.  I agree that it is a desirable outcome if otherwise consistent with justice and equity.  She said that she was unable to raise any money in order to retain the home.  I accept that on the open money market her prospects are grim.  There is some cause for optimism in that she comes from a close family who clearly share values of helping each other.  Her brother was at court throughout the proceedings.  He said that he would need to borrow if he were to help her and although it is clearly not his responsibility nor a firm expectation upon which I can proceed, her own alternative proposal does envisage the prospect of a payment to the husband and she sought 90 days in which she would try to arrange that.  That suggests she may believe she has some other prospect.  That is also supported by the fact she has made no real efforts to work or re-train which I would have expected as likely if she had genuinely believed she would desperately need to formally borrow in order to keep the house.

1. The wife’s primary proposal is to retain the home (subject to the small mortgage), and her car, as well as her superannuation.  She proposes to pay the husband a sum of $25,440, to be directly off-set against the amount of capitalised future maintenance and the arrears of maintenance he owes.  He would retain his superannuation and a few other small assets.  On her counsel’s reckoning she would thus receive close to 90% of the existing assets, but about 64% overall, taking into account the assets and superannuation. 

1. Her alternative proposal, although not her preferred one, is to retain a higher proportion of the existing assets (about 75%), with a splitting order so that all superannuation would be equally divided between the parties.  The effect would be a payment by her to the husband in the sum of $76,700, less the capitalised maintenance and arrears of maintenance of $25,440, so she would pay the husband approximately $51,250. 

1. The husband ultimately gave two alternative proposals.  The first is for a 60/40 split of existing assets so that he would receive in the vicinity of $112,000, but once adjusted to represent 50% of the difference between his superannuation and the wife’s, he would receive around $50,000.  His alternative proposal is for the superannuation to be split, so that each retains half, and he would receive around $112,000 from existing assets.

1. It is important for me to take into account the wife’s responsibility for the children and the disparity in each party’s income-earning capacity and financial prospects, the modest size of the asset pool, and her need to house not only herself but also the children, and the limitations on her trying to do so without retaining the home.  Her opportunity to retain the property can only be possible if she receives more than the husband of the existing assets. 

1. At the same time, any adjustment in the wife’s favour needs to be tempered, bearing in mind that a capitalised spousal maintenance sum will be met by the husband, and she will receive substantial assets now, and he will receive very little, if I accept the proposal for the husband to retain his superannuation.  (I note that both parties’ primary position is for him to do so.) 

1. I would have adjusted the pool of existing assets to around 70% in the wife’s favour, plus the equivalent of half of the parties’ superannuation, but taking the factors in the previous paragraph into account, the wife’s share of existing assets should be reduced to 62.5%. 

1. Overall she would thus receive the equivalent of more than 85% of existing assets.  That will enhance her opportunity to retain the home, or re-house herself and the children.  Her short to medium term prospects will be protected while she gains and establishes herself in employment.  For his part, the husband will receive a relatively small sum to meet existing debt and as modest capital for the future.  But the capitalisation of spousal maintenance means his commitment in that regard is certain and finite.  Without on-going spousal maintenance, the home re-payments, and private school fees, his income will enable him to begin to re-build, and he will retain his superannuation to secure his longer-term future.

CONCLUSION AS TO THE ORDER THAT IS JUST AND EQUITABLE IN ALL THE CIRCUMSTANCES

1. Weighing all those considerations I am satisfied that the appropriate approach in dividing the existing asset pool of $360,681 and superannuation of $160,842 is as follows.

1. As agreed, the school fees (“OACC”) debt of $9,956 shall be paid from:

   ·The CBA account   $6162

   ·The W proceeds  $3,794

   The husband shall retain from the existing assets:

   ·The balance of W proceeds  $    567

   ·P shares  $ 4,100

   ·C shares  $ 1,700

   ·W shares  $    783

   $ 7,150

   Less the Citibank loan  $ 5,000

   $ 2,150

   The wife shall retain from the existing assets:

   ·The L home  $370,000

   ·The Mercedes car  $    3,500

   $373,500

   Less the CBA loan  $  14,957

   $358,543

2. To retain 62.5% of the existing assets the wife should retain assets of $225,425, and the husband $135,255.  But the wife must receive from the husband’s share a sum of $25,440 by way of capitalised future maintenance and arrears, so that she will be entitled to $250,865, the husband $109,815.

1. The parties’ combined superannuation is $160,842.  Half is $80,421.  Each party is entitled to the equivalent of that.  The wife’s own superannuation is $17,868.  Accordingly, her share would be $62,553.  If I deduct that from what the husband should receive from existing assets, the wife will need to pay him $47,262.  The way the orders will be structured, as suggested by the parties, will give her reasonable time to try to arrange that without selling the home.  If she cannot raise the sum, there will be a default provision.  I am satisfied that gives a just and equitable result in all the circumstances.

ORDERS

1. I propose orders that include some by consent between the parties.  The structure of some of the property orders was also agreed.  The orders I propose, subject to submissions as to form, are as follows:

   CHILDREN’S ORDERS;

2. The children of the marriage, D born in August 1990 and D born in June 1993 live with the wife.

3. The husband and the wife shall retain equal shared parental responsibility for the children.

4. The husband shall spend time with and communicate with the said children in accordance with their wishes.

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

PROPERTY ORDERS:

1. The husband shall ensure that the net sale proceeds of the M development receivable by G Pty Ltd as trustee for the S Family Trust shall forthwith upon receipt be wholly applied towards reduction of the Viridian line of credit secured by CBA mortgage (“the Viridian mortgage”) over the property at L (“the real property”).

2. The husband shall be solely responsible for discharging the balance of the Viridian mortgage and shall indemnify and keep the wife indemnified in relation to it.

3. Contemporaneously with the payment by the husband referred to in paragraph 5 of these orders:

   (a)The wife shall pay to the husband the sum of $47,262 (“the payment”);

   (b)The wife shall do all acts and sign all documents so as to discharge the balance of the loan and mortgage with CBA (“the CBA loan”) and she shall indemnify and keep the husband indemnified in relation to it;

   (c)The wife shall do all acts and sign all documents so as to transfer to the husband all her right title and interest in the parties’ P, C and W shares; and

   (d)The husband shall do all acts and sign all documents to transfer to the wife all his right, title and interest in the real property.

4. In default of the wife making the payment referred to in paragraph 7 hereof the real property shall be sold within 60 days by public auction and the proceeds applied as follows:

   (a)Firstly in payment of selling and conveyancing costs and expenses;

   (b)Secondly, to complete the payment to the husband together with interest at 12% calculated from the date the husband discharges the Viridian mortgage; and

   (c)Thirdly, the balance to the wife.

   and each party shall have liberty to apply to the court in relation to arrangements to effect the sale.

5. From the wife’s share of property or monies, the sum of $21,840 represents capitalised spousal maintenance pursuant to s.77A of the Family Law Act 1975, the sum of $3,600 is by way of arrears of spousal maintenance, and otherwise all orders for spousal maintenance shall be discharged and any claims for future lump sum or periodic spousal maintenance shall be dismissed.

6. That the outstanding school fees payable by the parties to E College (“[EC]”) shall be paid as follows:

   (a)First from the funds currently frozen in the parties joint account number … in the sum of $6,162 plus any accrued interest thereon; and

   (b)Secondly, the balance from the monies held in trust by the wife’s solicitors pursuant to orders made 5 May 2005 (“The [W] proceeds”).

7. That the wife shall do all acts and sign all documents so as to resign as a director of G Pty Ltd and to transfer all her right title and interest (if any) in the S Family Trust and in any beneficiary loan accounts of the said trust to the husband.

8. That unless otherwise specified in these orders and save for the purpose of enforcing payment of any monies due under these or subsequent orders:

   (a)Each party shall be solely entitled to the exclusion of the other to all real and personal property (including choses in  action) registered in the name of such party or in the possession of such party or to which that party is legally or beneficially entitled as at the date of these orders or to which they may become subsequently entitled;

   (b)Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

   (c)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other.

9. That all existing applications shall be otherwise dismissed.

10. That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

IT IS DIRECTED

1. That the case shall be removed from the Pending Cases list.

BY CONSENT IT IS ORDERED

1. That within 21 days hereof the husband shall do all such acts and things and sign all necessary documents to transfer to the wife all bank accounts held in the names of the children:

   (a)D born in August 1990; and

   (b)E born in June 1993.

2. That the wife shall make available for inspection by the husband family photographs and photographs of the children by providing same to the offices of her solicitor within 30 days.

3. That the husband thereafter arrange for the said photographs be copied at the husband’s expense.

4. That the wife shall return the husband’s e-Tag device as soon as possible.

   IT IS NOTED

A.That all original photographs will be returned to the wife and retained by her.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  9 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as STROUD & STROUD