FERRO & KOPEL
[2016] FamCA 409
•26 May 2016
FAMILY COURT OF AUSTRALIA
FERRO & KOPEL [2016] FamCA 409
FAMILY LAW – CHILDREN – final orders – where the wife seeks an order that she be permitted to relocate with the child to Israel – where the application is opposed by the husband – where the wife is not permitted to relocate – where the parties share parental responsibility but the wife has sole parental responsibility for the child’s education and health – where orders are made for the child to live with the mother and spend substantial and significant time with the father.
FAMILY LAW – PROPERTY – final orders – where the husband seeks to retain the residential property – where both parties seek to retain their separate business enterprises – where consideration is given to the value of the assets including the businesses – where consideration is given to contributions including those of the husband’s family and where an adjustment is made in favour of the husband – where the overall adjustment creates a differential in favour of the wife – where the husband is required to pay the wife a settlement sum.
FAMILY LAW – JEWISH DIVORCE – where the wife seeks an order that the husband grant her a gett – where consideration is given to the constitutionality of such an order – where the Court does not consider it has the power to make the order sought.
Australian Constitution s 116
Family Law Act 1975 (Cth) s 4, 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN, 69ZQ, 69ZR, 69ZT, 75, 79, 90MT, 106A
Family Law Superannuation Regulations 2001 (Cth)
AMS v AIF (1999) 199 CLR 160
Andrew & Delaine [2009] FamCAFC 182
Beckham & Desprez [2015] FamCAFC 247
Blanding & Blanding [2016] FamCAFC 21
Gosper & Gosper (1987) FLC 91-818
Gwiazda & Ber (unreported, Family Court of Australia, Emery J, 23 February 1983)
Joachim & Joachim (unreported, Family Court of Australia, Hase J, 13 September 1996)
Mazorski & Albright (2007) 37 FamLR 518
MRR v GR (2010) 240 CLR 461
Ogilvie v Adams [1981] VR 1041
Pierce & Pierce (1999) FLC 92-844
Reicher & Reicher [2008] FamCA 108
Shvemer & Shvemer [2000] FamCA 1769
Shulsinger & Shulsinger (1977) FLC 90-207
Starr & Duggan [2009] FamCAFC 115Stanford v Stanford (2012) 247 CLR 108
Steinmetz & Steinmetz (No 2) (1981) FLC 91-079
White & White (1982) FLC 91-246Family Law Council, ‘Cultural community divorce and the Family Law Act 1975: A proposal to clarify the law’, 2001
APPLICANT: Mr Ferro
RESPONDENT: Ms Kopel
INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid
FILE NUMBER: MLC 6467 of 2014
DATE DELIVERED: 26 May 2016
PLACE DELIVERED: Adelaide
PLACE HEARD: Melbourne
JUDGMENT OF: Berman J
HEARING DATE: 9, 10, 15, 16, 17, 18 February 2016 REPRESENTATION
COUNSEL FOR THE APPLICANT: Ms Mawson QC
SOLICITOR FOR THE APPLICANT: Coote Family Lawyers
COUNSEL FOR THE RESPONDENT: Dr Ingelby
SOLICITOR FOR THE RESPONDENT: Berger Kordos Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Boymal
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid Orders
(1)That the parties have shared parental responsibility for J, born … 2009 (“the child”).
(2)That the wife have sole parental responsibility in respect of matters relating to education and health issues affecting the child.
(3)That in respect of education and health issues affecting the child, the wife will advise the husband in writing (electronically or otherwise) and provide her views about any major issues affecting the child’s education and health and shall consult with the husband about such issues in a genuine effort to come to a joint decision, but if no agreement is reached between the parties then the wife shall make the final decision and advise the husband in writing (electronically or otherwise) of that decision.
(4)That the child live with the wife and spend time with the husband as follows:
(a) During term times:
(i)from after school on Friday until the commencement of school on Monday in the first week;
(ii)from after school on Thursday to the commencement of school on Friday in the second week.
(b)For half of the school term holidays at times to be agreed and in default of agreement:
(i)for the first half in odd-numbered years;
(ii)for the second half in even-numbered years.
(c)For Passover by agreement and in default of agreement each alternate first night of Passover from 5.00 pm until 10.00 am the following day in all even-numbered years and for each alternate second night of Passover from 5.00 pm until 10.00 am the following day in odd-numbered years.
(d)For Jewish New Year by agreement and in default of agreement each alternate first night of Jewish New Year from 5.00 pm until 10.00 am the following day in all odd-numbered years and for each alternate second night of Jewish New Year from 5.00 pm until 10.00 am the following day in all even-numbered years.
(e)On the child’s birthday and on the husband’s birthday by agreement and in default of agreement from after school until 7.00 pm if it falls on a school day and from 10.00 am to 3.00 pm if it falls on a non-school day provided that if the child shall be with the husband on her birthday or the wife’s birthday then his time with the child is suspended from after school until 6.00 pm if it falls on a school day and from 10.00 am to 3.00 pm if it falls on a non-school day.
(f)By telephone or such other electronic means (such as email or Skype) as may be requested by the child but in the absence of a request then on one occasion in each week for a duration of no greater than 30 minutes unless requested by the child that the communication be for a longer duration provided that when the child is with the husband and there has been no request by the child to contact the wife then she shall be permitted to communicate with the child on one occasion in each week provided the duration does not exceed 30 minutes other than as may be requested by the child.
(g)On Father’s Day from 5.00 pm the day before until 6.00 pm provided that the husband’s time with the child is suspended on Mother’s Day from 5.00 pm the day before until 6.00 pm on Mother’s Day.
(h)At such other times as the parties may agreed.
(5)That the changeover shall take place at the child’s school wherever possible but if the child is not at school then the wife will collect the child from the husband’s home at the commencement of the child’s time with her and the husband will collect the child from the wife’s home at the conclusion of her time.
(6)That in any calendar year the parties be permitted to take the child to Israel or other overseas country that is a signatory to the 1980 Hague Convention provided that upon the wife giving ninety (90) days notice she be permitted to take the child to Israel for four consecutive weeks during each alternate summer school holiday period and for two consecutive weeks during the short school term holidays in each year commencing 2016 and that the husband’s time with the child will be suspended accordingly.
(7)That the parties notify each other of any proposed permanent change of residence, including notification of new telephone numbers and address of any place of residence.
(8)That the husband and the wife will each be and are hereby restrained from denigrating, abusing, insulting or belittling the other party or permitting any other person to do so in the presence of the child and from discussing these proceedings with her or with any other person in her presence.
(9)That the wife be responsible for and notify the husband sixty (60) days in advance of any proposal for schooling, such notice to include the name and address of the school where the wife proposes to enrol the child.
(10)That each parent notify the other forthwith of any serious illness or injury affecting the child and that they each be at liberty to contact any doctor or hospital treating the child to obtain information.
(11)That the child’s passport is to be retained by the wife and each of them shall do all such acts and things as may be necessary to have the child’s passport renewed provided that the husband give thirty (30) days notice to the wife of his intention to travel with the child out of the Commonwealth of Australia pursuant to these orders and the wife will forthwith provide the child’s passport to the husband who shall return it to the wife within 96 hours of the child’s return to Australia.
(12)In full and final settlement of all claims arising in respect of matrimonial property:-
(a)That within ninety (90) days of the date of this order the husband pay to the wife the sum of THREE HUNDRED THOUSAND TWO HUNDRED AND EIGHT SIX DOLLARS ($300,286) (“the settlement sum”).
(b)Contemporaneously with the payment of the settlement sum the wife shall do all acts and things as may be necessary and sign all documents required to transfer to the husband at his expense all of her right title and interest in the property situate at and known as F Street, Suburb Z in the State of Victoria (“the Z property”) and the husband shall do all acts and things and sign all documents necessary to procure for the wife a release from liability for payment of all monies due and owing pursuant to the mortgage secured over the said property.
(c)That the husband wife do all acts and sign all documents necessary to effect the following:
(i)the husband to retain the business known as II Business to the exclusion of the wife;
(ii)the wife to retain the businesses known as L Business and M Business to the exclusion of the husband.
(d)The husband shall pay and indemnify the wife in relation to any liability (including but not limited to taxation liability) in respect of II Business including any liability in respect of either a credit or debit loan account in the said entity.
(e)The wife pay and indemnify the husband in relation to any liability (including but not limited to taxation liability) in respect of L Business or M Business.
(13)That the settlement sum payable by the husband to the wife shall be reduced by the sum of $10,000 and upon payment of the reduced settlement sum the husband shall forego any right and entitlement to use the current Google AdWords account shared between the parties.
(14)That there be a superannuation split in favour of the wife from the superannuation interests held by the husband in Australian Super (“the fund”).
(15)The base amount allocated to the wife out of the interest held by the husband in the fund is $31,849.
(16)Pursuant to s 90MT(1)(a) of the Family Law Act 1975 (Cth) whenever the trustee of the fund makes a splittable payment from the interest held by the husband, the trustee:-
(a)Pay the wife the base amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001(Cth); and
(b)make corresponding reduction in the entitlements the husband would have had in the fund but for these orders.
(17)That the order for payment and transfer of the base amount as provided for herein shall have effect from the operative time which for the purposes of these orders is four (4) working days after the service of a sealed copy of these orders on the trustee of the fund such service to be effected by the wife.
(18)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 shall be solely entitled to the exclusion of the other to all other property (including choses in action) in the possession of such party as at the date of these orders;
(b)Each party forego any claim they may have to any superannuation benefits belonging to or earned by the other;
(c)Insurance policies remain the sole property of the beneficiary named therein;
(d)Any party be solely liable for and indemnify the other against any liability encumbering any item of property of which that party is entitled pursuant to these orders;
(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
(19)In default of the husband’s obligation to pay the settlement sum to the wife and in circumstances where that default shall remain outstanding for a period greater than 30 days then the parties shall do all things necessary to forthwith cause the Z property to be placed on the market for sale by private treaty or public auction upon such terms and conditions as the parties may agree but in default of agreement as may be ordered by this honourable Court and that following the sale of the said property and the payment out of the necessary costs of sale and the discharge of the current secured mortgage from the net balance remaining (if any) the wife shall receive the settlement sum or so much of the said settlement sum as shall remain outstanding and unpaid together with default interest at 10 percent per annum and the husband shall be entitled to the balance remaining (if any).
(20)A Registrar or Deputy Registrar of this honourable Court shall have power pursuant to s 106A of the Family Law Act1975 (Cth) to sign all such documents as may be required to give effect to these orders in circumstances where upon proof by affidavit a party has refused or neglected to sign such documents as may be presented to him or her and that such refusal or neglect has continued for a period longer than seven days after the said documents were presented.
(21)All matters removed from the pending list of cases.
(22)The matter is certified fit for counsel including senior counsel.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ferro & Kopel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
FAMILY COURT OF AUSTRALIA AT ADELAIDE FILE NUMBER: MLC 6467 of 2014
Mr Ferro Applicant
And
Ms Kopel Respondent
REASONS FOR JUDGMENT
INTRODUCTION
1.The parties are the parents of the child J born in 2009 (“the child”) and are in dispute as to the parenting arrangements that should apply to the child including orders that the wife seeks that would permit her to relocate with the child to Israel. The relocation as proposed by the wife is strongly opposed by the husband.
2.In addition, the parties are not able to reach agreement as to orders for settlement of property.
3.By Amended Initiating Application filed 15 June 2015, Mr Ferro (“the husband”) sought orders that the child live with him and spend significant and substantial time with the wife from Thursday until the commencement of school on Monday in each alternate week and half school holidays. Ancillary orders were also sought that would enable the child to spend time with each of the parties in order to celebrate religious festivals, Father’s Day and the birthdays of the parties and the child.
4.Additionally, the husband sought orders for settlement of property that would require a settlement sum to be paid to the wife contemporaneously with the transfer of her interest in the property situate at F Street, Suburb Z in the State of Victoria (“the Z property”). The parties would each retain their separate business ventures namely, as to the husband, the business known as II Business and as to the wife, L Business and M Business. The parties would each indemnify the other in respect of their separate liabilities including any taxation liabilities and in exchange for the husband foregoing any right or entitlement to use the Google AdWords (“Google AdWords”) Account, the wife would pay the husband the further sum of $10,000.
5.At trial and consistent with the orders sought in his Case Outline document filed 8 February 2016, the husband’s position changed materially in that he now seeks orders that in the event that the wife and the child are not permitted to relocate to Israel, then the child’s care should be shared on a week about basis with the child spending time with the wife for the school term holiday periods at the conclusion of terms 1 and 3 in odd numbered years, 2 and 3 in even numbered years and one half of each summer holiday period.
6.Consideration was also given in the event that the wife returned to live in Israel leaving the child with the husband in Victoria. In that event, the wife would spend time with the child for a minimum of two weeks and thereafter in alternating weeks during any period that she was in Australia and that the child could spend time with the wife in Israel for two thirds of the Australian long summer school holiday period and for a period of no less than three weeks during the child’s school term holidays at times to be agreed and in default of agreement during the June/July holiday period. The husband sought the same accommodation in circumstances where the Court permitted the child’s relocation.
7.There is some significance to the change in the orders sought by the husband on the eve of the trial. It was strongly argued on behalf of the wife that the orders now sought by the husband were inconsistent with the tenor of the husband’s trial affidavit namely, that the wife had poor parenting skills and that there was little or no emotional attachment between the child and her mother.
8.By her Second Amended Response filed 8 July 2015, Ms Kopel (“the wife”) sought orders that the parties have equal shared parental responsibility for the child, but that she be permitted to return permanently with the child to Israel and if so ordered, then the husband would spend time with the child as follows:
(a)for six weeks in Australia during the Israeli summer school holiday period (from July to August);
(b)for two weeks in Australia in April every second year and should the husband travel to Israel then for a period of not less than two weeks and thereafter in alternating weeks.
9.Whilst not sought by the husband, should he decide to reside in Israel, then the child would live with the wife and spend time with the husband as follows:
(a)during term time from after school on Thursday until the commencement of school on Monday in the first week;
(b)from after school on Wednesday until the commencement of school on Thursday in the second week;
(c)for half of school terms holidays and summer holidays at times to be agreed.
10.The same arrangement would apply if the wife was not able to relocate with the child and the parties continued to reside in Victoria.
11.She seeks orders not dissimilar to those sought by the husband in respect of the time that the child will spend with each of the parties during religious festivals, the birthdays of the parties and the child, Mother’s Day and Father’s Day. Specific issues which are uncontroversial.
12.Additionally, the wife seeks an order that the parties appear before the Beth Din Jewish Ecclesiastical Court of Melbourne and to require that the husband grant a Gett (Jewish bill of divorce).
13.The parties seek similar orders in respect of settlement of property namely, that they would retain their business and other interests free from claim by the other, the wife would transfer her interest in the Z property to the husband and would receive a settlement sum as determined by the Court.
14.At the commencement of the proceedings, the wife sought orders particularised in a draft minute of order but with the following significant changes:-
(1)That the husband shall spend time with the child as follows:
(a)for four weeks in Australia during the Israeli summer school holiday period (during July to August) at such times to be agreed between the parties;
(b)in Israel at such times to be agreed between the parties; and
(c)such other times as agreed between the parties.
15.If both parties are residing in Israel or in Australia, then the child will spend time with the husband in a two week rotation as follows:
(a)during term times, from after school on Friday until the commencement of school on Monday in the first week;
(b)from after school on Thursday to the commencement of school on Friday in the second week;
(c)for half of the school term holidays and summer holidays, at times to be agreed and in default of agreement:
(i)for the first half in odd numbered years;
(ii)for the second half in even numbered years.
16.In relation to property settlement, the wife now seeks a settlement sum in the amount of $500,000 to be paid within 60 days of the making of the order and a superannuation split pursuant to s 90MT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) from the superannuation interests of the husband in Australian Super in the base amount of $31,849.
17.The trial commenced before me on 9 February 2016 with final submissions being received and judgment reserved on 18 February 2016.
18.The parties were represented by counsel and senior counsel and the Court was assisted by the involvement of the Independent Children’s Lawyer (“ICL”) who was represented by counsel.
19.The husband relied upon the following documents:-
(1)Amended Initiating Application filed 15 June 2015
(2)Trial Affidavit of husband filed 30 October 2015
(3)Affidavit of husband in reply filed 2 December 2015
(4)Financial Statement of husband filed 16 July 2016
(5)Affidavit of Ms Afiled 2 December 2015
(6)Affidavit of Mr N filed 2 December 2015
(7)Affidavit of Ms Y filed 9 February 2016
(8)Affidavit of Ms S filed 2 December 2015
(9)Affidavit of Ms P filed 9 February 2016
20.The wife only required the attendance of Ms Y, the principal of the child’s dance school, to attend for cross examination. The balance of the non-party affidavits are read into evidence.
21.The husband assisted the Court by submitting a comprehensive Outline of Case filed 8 February 2016 and at the commencement of the proceedings, a separate balance sheet was tendered as an aid.
22.The wife relied upon the following documents:-
(1)Second Amended Response filed 8 July 2015
(2)Trial Affidavit of wife filed 18 November 2015
(3)Financial Statement of wife filed 16 July 2015
(4)Affidavit of Dr O filed 18 November 2015
(5)Affidavit of Mr X filed 18 November 2015
(6)Affidavit of Ms V filed 18 November 2015
(7)Affidavit of Ms U filed 18 November 2015
(8)Affidavit of Ms Q filed 18 December 2015
(9)Affidavit of Ms R filed 9 February 2016
23.The husband and the ICL did not require the non-party witnesses for cross-examination and their affidavits are read into evidence.
24.The Court received assistance from the wife’s Outline of Case document together with a separate Minute of Order and Property Balance Sheet by way of an aid.
25.The ICL relied upon the family report document dated 4 December 2015 prepared by Ms K (“family consultant”) and the affidavit of Dr B, a psychiatrist who conducted a psychiatric assessment of the parties contained in his report dated 12 November 2015 being annexure “A” to his affidavit.
26.The family consultant and the psychiatrist were provided with a vast quantity of affidavit material and importantly, reports from Mr G, Ms D and Mr H. The involvement of G, Dand H is controversial in circumstances where their reports were not formerly before me and they were not called to give evidence.
27.The background to the legal proceedings is a relevant consideration and may have some impact upon how those reports were considered by the family consultant and the psychiatrist and the weight that can be given to reliance upon mattes emanating from the reports of G, D and H.
28.Following separation on 21 June 2014, the parties consulted with Ms D. She saw the parties together and the husband separately. She prepared a report which did not find favour with the wife. She objected to the independence and expertise of Ms D. An order was made on 25 July 2015 that the parties would attend upon Mr G to prepare a report, but that the affidavit of Ms D annexing the contentious report would not be read by him.
29.The husband provided Ms D’s report to Mr G and it appears that there was some reliance by him which may well have influenced his recommendations. The G report was published on 22 September 2014 and recommended that the child live primarily with the husband.
30.Arising from the wife’s objection to the G report which she argued had improperly brought to account the D Report and was therefore contaminated, an order was made by the Senior Registrar on 29 September 2014 appointing Mr H to replace Mr G as family consultant.
31.The H report was published on 16 November 2014 and recommended that the shared care arrangement continue.
32.On 17 July 2015, Johns J ordered that the husband withdraw the affidavit of Ms D and her report annexed to the husband’s affidavit of 17 July 2015.
33.On 12 August 2015, Bennett J listed the matter before me and ordered that the ICL provide to Dr B and Dr C documents that might be relevant to the proceedings, but including the following:-
·Affidavit of Ms D sworn 24 July 2014
·Report of Mr G dated 29 September 2014
·Report of Mr H dated 16 November 2014
·Questions delivered by the husband’s lawyers to Mr H and his response dated 15 April 2015
·The Affidavit of Mr G sworn 2 February 2015 discussing formal attachment assessment
34.Neither party, nor the ICL, relied upon the reports of D, G and H.
35.The orders sought by the ICL are generally supportive of the wife’s proposal. Importantly, the ICL supports the wife having sole parental responsibility for the child subject to being required to engage in consultation with the husband and promotes orders that the husband spend time with the child but on the basis that the wife and child return permanently to live in Israel.
36.Should the parents reside in Australia, then the child would live with the wife and spend significant and substantial time with the husband together with appropriate arrangements for the child to spend time with each of the parties on special occasions including religious festivals.
37.Whilst the wife proposed orders in the circumstance where both parties returned to live in Israel permanently, the husband’s position was that there was no likelihood or probability that would see him return to Israel. Accordingly, the consideration of the Court in respect of the separate proposals of the parties (and the ICL) is confined to the parenting orders that should be made if the wife and child reside in Israel or if the parties and the child remain in Australia.
CONDUCT OF THE PROCEEDINGS
38.The proceedings were conducted pursuant to the provisions of s 69ZN of the Act and in determining and giving effect to the principles as set out therein, I advised the parties of the general duties and powers as set out in s 69ZQ and the ability I have to make determinations, findings and an order at any stage of the proceedings if it will assist in the better management of the trial pursuant to s 69ZR.
39.I also considered it important that the provisions of s 69ZT should not be dispensed with and accordingly the parts of the Evidence Act 1995 (Cth) (“the Evidence Act”) as set out in s 69ZT were not the subject of application.
40.In making the determination as to the application of the provisions of s 69ZT, I considered the following matters:
(i)the importance of the evidence in the proceedings;
(ii)the nature of the subject matter of the proceedings;
(iii)the probative value of evidence for the power of the court, if any, to adjourn the hearing to make another order to give directions in relation to evidence.
41.There were no circumstances in this case which would fall into the category of “exceptional”.
42.Furthermore, the provisions of s 69ZT(2) provide:-
The court must give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provisions of the Evidence Act 1995 not applying because of subsection (1).
CHRONOLOGY
1968Date of birth of husband.
1971Date of birth of wife.
1994-1995Parties live together in Israel.
2000Parties marry in Israel.
January 2003 The parties move from Israel to Australia.
March 2003Parties apply for permanent residence status in Australia.
2009Date of birth of child conceived via an altruistic surrogacy.
Nov 2012- 2014 Wife alleges that she is unwell following a possible gas poisoning. Her ability to care for the child during this period is compromised.
January 2014 Parties and child travel to Israel where the wife undergoes treatment which significantly assists in the amelioration of her chronic fatigue symptoms.
March 2014Parties are in significant dispute and contemplate a separation.
May 2014Family returns to Australia from Israel.
21.6.2014Parties separate. Wife and child leave the former matrimonial home.
24.7.2014Husband commences proceedings.
BACKGROUND
43.The parties met whilst each were serving in the Israeli army in the early 1990’s. They commenced a relationship and cohabitation in about 1994 or 1995. Each of the parties was born in Israel and hold Israeli citizenship.
44.The parties are high functioning individuals. Both hold degrees in an allied health discipline with the husband majoring in economics and the wife in behavioural science. In 1995 the parties undertook further study. They married in 2000. They obtained employment as allied health professionals, travelled extensively and sought to improve their financial circumstances by investing in property with the intention of generating rental income.
45.The parties were keen to explore post-graduate qualifications. After unsuccessful applications to America and the United Kingdom, they were successful in both being accepted into an MBA course in Melbourne.
46.The parties moved to Australia in January 2003. The wife found employment in an IT company but following her redundancy she undertook consultancy work. Meanwhile the husband commenced and completed his MBA and obtained employment as a senior allied health professional.
47.For his part, the husband expresses some level of contentment with the level of integration by the parties in Australian society. The wife’s position is more equivocal. She complains that they had few friends and those that they did meet were of Israeli background. She watched Israeli television, read Israeli newspapers and not withstanding her residence in Australia, she continued to feel strongly connected to Israel.
48.The parties however remained in Australia and considered having a child. Ultimately the parties underwent a surrogacy process in overseas which resulted in the birth of the child in 2009.
49.It is following the birth that the parties diverge as to the child’s care arrangements.
50.For his part, the husband alleges that the wife was not able to build a relationship with the child. He observed very little affection and limited ability for the wife to engender any emotional attachment to the child. He says that her early parenting of the child was very much “operational” and was more about management than any desire to emotionally bond.
51.The wife has a different version. She says that from birth the child was observed to be happy and that she had a very strong emotional connection and attachment to her.
52.The husband was employed on a full-time basis and accordingly the day to day care arrangements for the child was left to the wife. The family had help from a nanny but the wife’s work enabled her to work from home and was further assisted by the attendance of the paternal and maternal grandmothers from January to March 2010 and March to August 2010.
53.The parties were highly attentive to the child’s needs. In answer to the husband’s criticism of the “managerial” style of the wife’s parenting, her response is that her reading promoted routine and taking into account the otherwise busy lives of the parties, records of the child’s feeding and other information was both recommended and undertaken.
54.Moreover, for the first six months following birth, the parties imported breast milk expressed by the surrogate mother overseas.
55.The wife’s observation was that the husband would constantly interfere in her developing relationship with the child and the parties began to argue about mundane arrangements in respect of the care of the child.
56.She says that the husband “was constantly engaging with [the child] but I attributed this to the fact that he had little time with her during the week”.
57.It is clear that the birth did not assist in strengthening the relationship between the parties. The husband complains that the wife was possessive of the child and “often became frustrated and jealous of the attention I gave [the child] and told me that she felt neglected and deserted by me”.
58.The husband’s position was that the wife’s parenting was perfunctory and that for the first year following the child’s birth the child was cared for either by nannies or by the maternal and paternal grandmothers and by him both in the early morning, evenings, nights and in particular, his primary care over the weekends.
59.The parties argued over immunisation and engaging the child in alternate therapies. The husband states that he was principally involved in ensuring that the child attended to medical appointments and developmental assessments, whereas the wife says that she was primarily responsible for the child’s health, but acknowledges from time to time she and the child were accompanied to the medical appointments by the husband.
60.The wife has a more benign view of the parenting arrangements in their household. She says that the parties shared the child’s care, were equally engaged in the childcare arrangements and other activities both at night and when the parties were not working.
61.The parties continued their various enterprises. The wife freely acknowledges that her business was growing and as a result the parties employed a nanny and for a short time, a cook.
62.The husband left his job when the child was about two years of age. He did so in order to focus on the care of the child. This meant that the parties were able to dispense with the services of a nanny and given the wife’s business arrangement it was more likely than not that the husband undertook a primary care role. The circumstances were exacerbated when the wife suffered what at first appeared to be flu like symptoms in late 2011. She agrees that the husband took on a significantly greater role in caring for the child and undertaking domestic duties as she became increasingly more unwell. She attributes her poor health to the onset of Chronic Fatigue Syndrome.
63.Much was said in evidence about the wife’s debilitating state. She asserts that she suffered from chronic gas poisoning and that it took until April 2014 and following treatment in Israel that she has made a full recovery.
64.I am uncertain whether the husband accepts the wife’s explanation for her condition but I find, consistent with the proper concessions made by the wife that during the period that she was clearly fatigued, the husband was primarily responsible for the parenting of the child and the good order of the household. That is not to suggest that the wife abrogated all parenting responsibilities, but the primary care by the husband appears to be the reality of the situation.
65.To the extent that the husband seeks to disparage the wife in terms of her ill health during this period, it is not supported on the evidence. The wife freely admits the extent of her disability and concedes the important role played by the husband.
66.Following the successful treatment, the parties returned to Australia in May 2014 and separated shortly thereafter.
67.At that stage the parties were not without hope of reconciliation. They met with various counsellors and entered a process of mediation. The husband alleges that on 23 July 2014 the wife removed her belongings from the home and took the child to an unknown location. The husband was concerned that the wife may attempt to take the child to Israel without his consent.
68.The wife refers to the child’s behaviour towards her as “rejecting behaviour”. She alleges that she became concerned that the child was aggressive towards her in circumstances where she had previously had a loving and close relationship. She alleges that the child repeated a mantra that she loved the husband but did not love her.
69.The wife attributes the child’s behaviour to the deliberate and adverse influence of the husband.
70.Whilst not accepting the range of adverse behaviours highlighted by the wife, the husband provides some corroboration for the wife’s observations by his evidence that there was little or no emotional attachment as between the wife and the child.
The child’s health
71.The parties have been significantly focussed on concerns in respect of the child’s health.
72.Whilst the parties are generally agreed that the child’s health has been poor, it is the manner in which the health considerations have been undertaken by each of the parties which has caused further complaint and conflict.
73.It seems that the child has suffered from anaemia and initially the cause of the child’s iron deficiency was not able to be determined.
74.She underwent various invasive procedures until eventually in April 2015 and following a diagnosis of a vascular malformation in her lower abdomen, the child underwent surgery.
75.The wife asserts that the husband attempted to exclude her from appointments on various health professionals. It is even alleged by her that the husband would unilaterally change medical and dental appointments if he perceived that he could not attend with the child without the wife’s consent.
76.The husband alleges that such was the level of dysfunction and conflict between them that they were not able to easily agree the admission of the child to hospital following what the husband considered to be adverse medical symptoms potentially connected with her surgery in April 2015.
77.Fortunately it appears that the child has made a good recovery once the cause of anaemia had been established and dealt with.
78.At annexure AK6 to the wife’s trial affidavit, she annexes a medical report from Dr T dated 1 October 2015. The diagnosis of the paediatrician is that following a “[surgery] in April of this year” that there has been a “complete resolution of her iron deficiency and her anaemia”.
79.Apart from a suggestion that the child may not be robust in her energy levels, there does not appear to be any issues in respect of the child’s health which would impact upon the orders that each of the parties seeks.
The proposals of the parties
80.The husband is opposed to the relocation of the child to Israel. He does however recognise that whilst he denies that there had been a clear agreement between the parties to allow the wife and the child to relocate to Israel at some stage in the future, he does at least accept that the topic was discussed and that there was some basis for the wife’s desire to return to Israel.
81.This recognition resonates in his proposal that providing the parties enjoy equal shared parental responsibility for the child and that she continues to be in a shared-care arrangement, the preponderance of the child’s school holidays would be spent with the wife specifically to afford her the opportunity to travel to Israel and spend time with her friends and importantly, the maternal grandmother.
82.The wife’s proposal is that she should be able to relocate with the child to Israel and that the husband would be able to spend significant and substantial time with the child consistent with what she alleges was a prior agreement. She supports the proposal by her assertion that there is nothing that would prohibit the husband from returning to Israel and indeed such a move had been contemplated by the parties and was the subject of agreement. If the child remained in Australia then she would spend time with the husband on a significant and substantial basis.
83.Notwithstanding the differences between the parties, if the child remains in Australia the orders that each of them seek would be reasonably practicable in the circumstances of the case. The same cannot necessarily be said for the wife’s proposal to relocate with the child to Israel. Whilst the husband concedes that there is no physical impediment to him returning to Israel, it is not his current position, his business and other financial arrangements would not be able to easily be transferred and in any event he considers that both he and the child are well settled in Australia. The effect on the child of relocating to Israel with the likely consequence of a significant disruption to his relationship with her at worst has the potential to be detrimental to the child’s development and at best, is unknown. It is his case that it could not be said that the benefits to the child of a relocation are readily apparent. It is the wife that wants to relocate for her own benefit rather than the child and if the wife’s application is refused, she presents no evidence that would suggest the effect upon her would be anything more significant than personal disappointment. There is no suggestion on the wife’s case that a failure of her application to relocate would have a profound effect on her ability to parent the child.
The child at school
84.The child is currently in primary school. The parties are not agreed as to her academic performance. The parties are in conflict as to whether there was agreement that there should be a focus on the child learning English in circumstances where Hebrew was the spoken language in the home. The wife considers that both parties accepted the advice of the child’s teacher that there needed to be emphasis on the child learning English, whereas the husband considers that the wife was resistant to English tuition.
85.The wife points to aggressive behaviour of the child and the school recording twenty six incidents of aggressive behaviour between May to September 2015. With an unfortunate focus on the detail, the wife attempts to show that the various incidents of aggressive behaviour predominantly coincided with the child being in the care of the husband. That allegation is set out in a table found at paragraph 138 of the wife’s trial affidavit. Even if accurate, I do not consider that it is capable of corroborating the wife’s assertion that the husband’s inability or refusal to discipline the child is the explanation for the alleged aggressive behaviour.
86.The husband denies any link between the child’s aggressive behaviour and her time spent with him and counters by his observation that in his care the child displays no aggressive behaviour, with the implication that the cause must emanate from the wife’s household. In any event, there is no evidence as to whether the aggressive conduct is of a minor nature as opposed to more overt conduct which would warrant concern.
87.Fortunately the parents have interacted well with the child’s school and teachers and whilst acknowledging a slow start, the following from the wife’s affidavit would appear to adequately summarise the current position:-
[143]In a more recent meeting in the past month or so, [the teacher] reported a great deal of academic improvement although [the child] is behind in her class and [the child’s] social issues have escalated and there were numerous incidents where [the child] was physical with other kids. The husband and I had meetings with the school’s social worker and discussed strategies to support [the child]. The social worker proposed strategies to assist [the child] including private meetings with the social worker. It was also discussed that [the child] will see an occupational therapist at school.
88.Importantly, the husband accepts that the parties have worked cooperatively with each other in respect of the child’s time at school including meetings with the teachers and the school social worker. It appears that there was a joint decision that the child would see an occupational therapist.
Intervention order proceedings
89.It is an unfortunately feature of the breakdown in the relationship between the parties that each of them considered that they needed an intervention order to protect themselves from the alleged adverse conduct of the other. The wife applied for an obtained an interim intervention order on 8 May 2015 with the child listed as a protected person.
90.On 20 May 2015, the husband applied for an intervention order directed against the wife.
91.The parties were however able to resolve the opposing proceedings without admission by way of mutual undertakings lodged with the Court on 18 November 2015.
EVIDENCE
The husband
92.The husband confirmed that he seeks orders as set out in his Outline of Case document filed 8 February 2016. He relied upon his trial affidavit filed 30 October 2015 and a subsequent affidavit in reply filed 2 December 2015. He confirmed that he had recently read his affidavits and was then cross examined by the wife’s counsel.
93.Reference was made to the following paragraph from the report of the family consultant dated 4 December 2015:-
[56][The husband] repeatedly asserted [the wife] “…was not attached to [the child]” she is “…less attuned to [the child] and “she has no appropriate sense of [the child’s] physical and psychological well-being”. He advises “…that there were alarming issues between [the child] and her mother” claiming in response to “…punishment from her mother” [the child] chewed paper later admitting that this was a symptom of severe anaemia, not the impact of [the wife’s] parenting. The inference [the husband] draws is that [the child’s] life will be enriched by largely eliminating [the wife’s] capacity to influence [the child]. [The husband] displayed discomfort and difficulty suggesting any arrangement for time between [the child] and [the wife], responding with the homily “…a mother should have contact with her child”, but not providing clear proposals. [The husband] did advise that [the child] required a “…consistent safe environment from which she will grow into a capable independent person”, but also believes “…I am the one to supply that foundation”. [The husband] does not believe [the child] “…should be with one parent” and on the basis of his claimed “…attachment”, [the child] should be with her father. Following this [the husband] cannot identify any manner in which he would facilitate [the child’s] time with her mother.
94.What is apparent is that if accurate, the husband’s presentation to the family consultant would appear to be in significant conflict with the orders that he seeks namely, that the parties share the care of the child. Counsel challenged the husband in respect of this statement and he conceded that he had probably said something similar to that which was recorded, but he did not suggest that the child should be with one parent and considered that the family consultant may have confused a couple of the concepts expressed.
95.The focus of the cross examination was to highlight that the view of the husband as at the date of interview namely 24 November 2015, was totally inconsistent with the orders that he seeks.
96.The husband was evasive in his response. I am satisfied that paragraph 56 of the family report is an accurate reflection of the husband’s view of the parties’ respective abilities to parent the child.
97.The husband conceded the matters recorded in paragraph 55 of the family report, namely that it was “too difficult for [the child] to consolidate these two lives”. He further confirmed that the child at the time was resisting hugs from him and considered that it was a possibility that the wife had said things to the child that reflected that hugs were “bad”.
98.The husband was asked to reflect upon his statement to the family consultant in paragraph 54 of the family report that “…a core problem” with [the child] “…was that she is not managing her emotional frustration” and [the child] “…is not happy” because “…she does not have a lot of control about her life”. The husband confirmed that he had relayed to the family consultant that the child was not happy and conceded counsel’s proposition that it was a serious statement to make namely, that a child was “not happy”.
99.The husband qualified his answer by stating that his statements may have been taken out of context.
100.It was also put to the husband that not at any stage during the interview with the family consultant did he discuss the possibility of shared care being an appropriate parenting option. The husband conceded that he had not done so and was then asked to reflect on when he first considered a proposal that the parties have shared care. The husband’s response was that in August 2015 he started to think about shared care after the wife appeared to be getting better. The husband conceded that there were no issues in respect of the wife’s presentation which would place the child at risk, although he considered that there was a slight concern based upon the wife’s conduct following the child’s operation in April 2015.
101.The husband was referred to paragraph 23 of his annexures which sets out the text messages passing between the parties from 2.45 am on 3 May 2015 to 10.11 am on the same date. The husband accepted that he had received information from the wife about the child vomiting and was asked what was his concern in respect of the wife’s treatment of the child. The husband’s response was that he would have taken the child to the hospital emergency department immediately. It appears that the husband attended the wife’s home and with the assistance of a friend or a neighbour gained entrance through the security door.
102.The wife, when ultimately confronted by the husband, agreed that she would take the child to the doctor. However, it appears that the husband was insistent that he be involved and it was put to him that without the wife’s consent he attempted to force his way into the wife’s apartment. The husband denied that he entered the apartment but did concede that the issue may not have been that the wife was not prepared to take appropriate action but rather, that the incident occurred because the husband would not accept the wife’s assurances.
103.Given the husband’s position on that occasion, it was put to him that he must still harbor concerns as to the wife’s ability to meet the child’s physical needs. The husband disagreed and strongly confirmed his current position, which was that he did not have concerns in respect of the wife’s ability to care for the child.
104.A significant theme throughout the husband’s affidavit was his view that there was little or no affection or attachment between the wife and the child.
105.At paragraph 21 of his trial affidavit the husband states:-
I say that [the child’s] bond with me commenced shortly after she was born. When she was around three months old, I started taking her out on walks around the neighbourhood daily, holding her in my arms and showing her plenty of affection. [The wife] on the other hand continued to show very little affection and patience for [the child].
106.The husband alleges that the reality of the early years of the child’s life was that she was cared for primary by the nanny, grandmothers and himself. The wife had little involvement with the child’s day to day routine and in respect of the changing of a nappy, the wife was disgusted by the procedure.
107.The obvious difficulty for the husband was that the orders he now seeks could only be viable if he accepted that the child now was closely attached to both parents. The husband conceded that there was reciprocal love and attachment between the wife and the child. He has no concerns in respect of the wife’s ability to meet the child’s emotional needs and he was prepared to accept that currently the child is coping well with both parents.
108.The clear thrust of the cross examination of the husband was that his entrenched view of the almost total inability of the wife to adequately or properly parent the child as recently expressed in his affidavit material last filed on 2 December 2015 and to the family consultant in late November 2015, was entirely inconsistent with his current evidence as to the competency of the wife to provide appropriate parenting to the child.
109.Not at any time during his evidence did the husband resile from his affidavit material and the extreme and repeated criticism of the parenting capacity of the wife but rather, that with the efflux of time his concerns were less pronounced and the child was better able to cope with the “different parenting styles of the parties”.
110.It must be remembered that the husband alleges the wife is not able to control her anger and that there have been many instances (including in the presence of or directed towards the child) when she has lost control and “went into a fit of rage”.
111.In particular, “the rage attacks” and episodes of rage are set out in paragraph 42 of the husband’s trial affidavit. It cannot be overlooked that the husband alleges the following examples:-
·In April 2012 the wife slammed a bathroom door with such force that an architrave became dislodged. The wife’s anger and rage took place in the presence of the child;
·In July 2012 wife slammed her head and hand against the wall and a door shouting that she wanted to die and with such force that the door cracked and had to be replaced. This occurred in the presence of the child;
·In May 2013 the wife lost her temper and slammed a glass jar on the kitchen benchtop in front of the husband and the child;
·In September 2013 the wife lost her temper at the child and screamed at the child saying “I want to kill you”;
·In September 2013 the wife slammed her head and hands on a door and shouted at the husband in the presence of the child for placing a band-aid on the child’s finger because she wanted to do it;
·In May 2014 the wife created a scene at an overseas airport causing embarrassment and distress to the husband, the child and other passengers;
·In April 2015 whilst the child was hospitalised and recovering from her abdominal surgery, the wife screamed at the paternal grandmother and behaved in an aggressive and physical manner which ultimately required the intervention of a nurse.
112.The husband was challenged in respect of his evidence as to the wife’s volatile behaviour, but the husband’s response was to minimise the impact of her alleged conduct for the present purposes.
113.The wife had alleged that the child slept in the husband’s bed, continued to use a dummy and that he ignored the wife’s opposition to the practices continuing. He acknowledged that the child had slept with him until December 2015, but because the husband perceived that the child needed further comfort, he was still allowing a dummy to be used.
114.By order made 12 August 2015, the parties were required to attend upon Dr B to enable a psychiatric assessment to be undertaken. The report of Dr B is attached to his affidavit filed 3 December 2015. It was put to the husband that during his interview, he spoke of the disparate parenting styles of the parties and considered that his parenting style involved “atunement” to the child’s needs whereas this was absent from the wife’s presentation. In cross examination, the husband stated that the wife had difficulty bonding with the child who had rejected her both physically and emotionally.
115.The husband conceded that he told the psychiatrist that the struggle in respect of the child was “doomed to continue”. He repeated his affidavit evidence that the wife would engage in rage attacks and considered that living with the wife was like “living with a tornado”. He considered that the child sees him as her “safety place”, highlighting the lack of bonding between the wife and the child.
116.Given the apparent consistency between his criticism in his affidavit and his view expressed to the psychiatrist, the husband was challenged as to how his case could change from a position where clearly the interests of the child could only be served in his primary care to one of shared care.
117.I am satisfied that the husband attempted to paint a picture of the wife as a strict disciplinarian and as a person emotionally distant from the child, lacking any ability to bond or form an emotional attachment and potentially presenting as a danger to the child from her perceived inability to control her temper.
118.The husband was not able to explain the inconsistency and continuously reverted to his position that things had moved on and the parties had now reconciled themselves to a more cooperative and engaged process. I have difficulty in accepting the husband’s explanation for what can only be described as a dramatic about-face and not logically capable of explanation given the short period between December 2015 and the commencement of the trial.
119.A further focus of the cross examination was to highlight the difference in parenting styles and to put the proposition to the husband that he was more indulgent with the child that the wife. The topic was crystalized by focussing on the remarks on the family consultant as follows:-
[99][The child] largely spoke positively about both parents but explored differences between her parents which were around the extent to which her requirements “…for ice-cream all morning” were indulged clarifying that her father indulged her whilst her mother subjected her to restrictions her father discussed with her and considered to be inappropriate. The consistent theme reported by [the child] was [the husband] presenting himself as the kinder parent because he was more indulgent…
120.The husband’s response was to accept that he may be a more indulgent parent but that it was within a reasonable parameter in difference of parenting styles between the parties. The husband further commented that the family consultant had misunderstood his position about the different parenting styles and that he was not attempting to highlight the differences as a strong criticism of the wife’s ability to appropriately parent the child.
121.To the extent that it is likely to be a relevant consideration, I consider that the wife is more likely to impose appropriate discipline even if the child reacts adversely to the rules imposed in the wife’s household.
122.The first time the child went to school was in the year of 2015 and it is to be recognised that the child is now exposed to school-based rules and discipline. It is not unreasonable that the concept of household rules is imposed in the households of each of the parties.
123.The concern of the family consultant put to the husband was that he was deliberately more indulgent of the child in order to create in the child’s mind a preference for his household as opposed to the wife.
124.The husband conceded that it was likely the child knew and probably accepted that whilst each of the households imposed rules on the child, their application was probably more rigorous in the wife’s household.
125.A central part of the wife’s case is that the husband would be able to relocate to Israel consistent with what she asserts was a prior agreement. The husband conceded that there had been discussions about the wife and child relocating to Israel and that in September 2014 if the Court ordered that the child was able to relocate, he would have no hesitation in returning to Israel.
126.That position had been put by the husband to Mr G.
127.I remain unconvinced that any discourse between the parties about returning to Israel could be elevated to a status other than general discussion between them as part of their initial attempts at reconciliation and attempts to work out a sensible way forward.
128.The husband’s strong position is that it would be better if both parents were together in the one place and that whilst he conceded it may be physically possible for him to return to Israel, it was not now an option for him.
129.The husband presented as being satisfied and comfortable residing in Australia. It is reasonable that a part of the husband’s proposal should see him remaining in Australia, not tempered by the suggestion that he could easily return to Israel and as such his opposition should be seen as disingenuous.
130.The husband was challenged in respect of his remarks in his affidavit filed 3 September 2014:-
[99]With regards to paragraph 187(d)(ii), children have a very strong survival mechanism which means that they will not do or act in a way that would jeopardise their safety. Hence, when [the child] has been forced to stay with [the wife] and her mother in [the wife’s] apartment, [the child] knows that expressing emotional behaviour that is not favourable towards [the wife] will end with a punishment. That’s why she stopped rejecting [the wife] and her mother.
131.In essence, the husband was attempting to explain why the child was then no longer rejecting the wife by the suggestion that if she continued to do so she would be punished.
132.It was put to the husband that such a concept was nonsense. The consideration of the husband as contained in paragraph 99 is not evidence and is no more than rank uninformed opinion. I am however satisfied that it genuinely represents the husband’s thinking and reflects poorly on his stated position that the only differences between the parties is one of parenting style which is well within the ability of the child to cope with based upon the child’s increasing maturity and resilience.
133.The husband was asked whether this was his current approach and his answer was emphatically that it was not now his position. The husband’s response was challenged by reference to paragraphs 85 and 86 of his trial affidavit wherein he was keen to pursue an attachment assessment report as between the child and the wife with the clear reservation to the husband of his right to file a further affidavit upon the release of further expert reports.
134.It seems clear that certainly as at the date of his trial affidavit, the husband continued to hold his long-standing position that the child was more strongly attached to him and was loosely attached, if at all, to the wife.
135.Whilst I am inclined to accept that the matters raised in the husband’s trial affidavit, in his psychiatric assessment and as discussed with the family consultant, is property representative of his adverse view of the wife’s ability to parent and lack of emotional attachment to the child, I do accept the husband’s evidence that after the litigation is concluded there is some reasonable prospect for the parties to be able to work together. It is his evidence that there has been a gradual thawing of the more difficult aspects of their relationship and he highlights that the parties have been to the school together and have consulted with the school counsellor.
136.I suspect that the husband’s attitude at trial is more likely to be motivated by trial strategy rather than a genuine view that his earlier concerns are now able to be explained by the child’s increasing maturity and resilience and reflected in appropriate albeit different parenting styles.
137.In an attempt to highlight the husband’s potential for manipulation, it was put to him that he deliberately gave the D Report to Mr G despite his very clear understanding that this was not to occur. The husband’s response that he fell in with Mr G’s request in circumstances where he happened to have the D Report with him at the time is unconvincing.
138.At paragraph 26 of the family report the following is recorded on the topic of the wife’s return to Israel:-
[The husband] acknowledged he had advised [the wife] if there was a return to Israel he would return also, but he now reported such a consideration “…was impossible”.
139.Under cross examination, the husband denied that he told the family consultant if the wife returned to Israel he would also return.
140.I find that the husband did indicate to the family consultant a preparedness to return to Israel if the wife was permitted to relocate, but I do not consider it necessarily inconsistent with the husband’s current presentation. I have found that the issue of return to Israel was the topic of discussion and it may well have been the case at some point the husband may have stated that he would consider returning. The husband’s position has changed. He now would prefer to remain in Australia and to a significant degree there is nothing inherently inconsistent with that position that now requires an explanation. Put simply, the husband is entitled to now consider Australia his home. It could not be said that a return to Israel for the husband would be without complication and significant disruption.
141.The observations of the family consultant that the child displayed oppositional and defiant behaviour was put to the husband in part by reference to the following from the report:-
[90][The child] spent much of the time in the childcare room watching her iPad and it became apparent that she experienced difficulty sharing with others or allowing others to join in her activity. She was noticed frequently expressing irritation that other children wanted to peer over her shoulder and watch the show and she was voluble in her irritation explaining how “…you annoy me” and telling the children “…to go away”.
142.A report from the child’s school spoke of her aggressive conduct and in particular behaviour involving hitting and kicking others. The opinion of the family consultant was that the child “lacks a clear view of what is acceptable behaviour”. The examples of oppositional and defiant behaviour were put to the husband and with some reluctance he was prepared to agree that the child’s moods were “mercurial”.
143.The focus of cross examination on behalf of the ICL was directed to the proposition that the husband is over-protective of the child. The husband denies that is the case and whilst acknowledging some of the adverse behaviours of the child as described in paragraphs 161, 162, 163 and 166 of the wife’s affidavit, did not consider that this was evidence of him being overly indulgent or over-protective.
144.The following from the psychiatrist report was put to the husband for his comment:-
[The husband] sees himself as the primary caregiver of [the child] and in the process has given up many of the other aspects of his life and impressed as highly dedicated to this task to the point of possible enmeshment. In his optimistic way, [the husband] absolutely denied the presence of psychiatric symptoms.
145.The psychiatrist did not find that either of the parties suffered from any psychiatric condition, but the extent to which the husband was enmeshed with the child was a relevant consideration.
146.The remarks of the psychiatrist are repeated in the family report at the following paragraph:-
[129]The absence of a psychiatric diagnosis for [the husband] indicates what is unfolding here is a process of alienation arising from [the husband’s] enmeshment and inappropriate and unabashed devotion to his image of [the child] and his idealised relationship with her. His requirement to separate mother and child is around the husband’s sense of ownership; his inflated sense of entitlement and his projection of self, all of which indicates that he is bad not mad.
147.Whilst the expression “bad not mad” is at best inappropriate, it should not be conflated with the general concept that the husband’s involvement with the child has been one of absolute focus with the intent of removing the wife in part from the child’s life.
148.The husband did not concede that he was enmeshed with the child and resiles from his position put to the family consultant that the child does not need two parents with the implication being that his parenting is all that is required.
149.The husband did not resile from the matters raised in his trial affidavit or the psychiatric and family reports. At best he was prepared to concede that for a significant part of the child’s life he was better able to cater for her needs, but that was not necessarily the position now.
150.By reference in cross examination to earlier affidavits filed, there was clearly a consistent position namely, that only he was able to provide for the needs of the child. There had been no concession up until trial that the wife was able to parent, had something to offer the child or importantly, that there was even an emotional attachment between the wife and the child. The husband’s evidence was clearly at odds with the general thrust of the family report and the recommendations of the family consultant. Ultimately, I consider that the husband’s behaviour had the initial consequence of alienating the child from the wife, but it could not be said that the husband is personally lacking the necessary skills to contribute in a meaningful way to the child’s life. For a period of two years during the wife’s illness and disability, there is a general concession that he was the primary carer.
151.Notwithstanding his earlier affidavit material, I am entitled to consider the husband’s presentation at trial in order to assess whether he is now able to support a relationship between the child and the wife.
The wife
152.The wife’s evidence as contained in her trial affidavit was supplemented by examination in chief. She was referred to page 35 of the family consultant’s report where the following is reported:-
She now considers [the husband] “…defiant, creating harm, manipulative with a need for control” and for [the husband] “…his different reality” and “…his need for control of [the child]” is “…a life and death battle”.
153.She confirmed that this may have been a misreport by the family consultant and that what she had done was to repeat what a number of friends had said to her. Ultimately she conceded that there was nothing in this and whilst she did not resile from her general position that she considered that the husband needed to control the child even if this resulted in the wife’s lack of involvement, she did not genuinely believe that the conflict between them had reached a “life and death battle”.
154.Whatever may have been said by the wife to the family consultant, there is no evidence which leads me to find that the husband poses any physical risk to the child.
155.The focus of the cross examination of the wife was to demonstrate that for a significant period of time the parties very much shared the care of the child and moreover the wife was respectful and even complimentary of the husband’s parenting during her period of debilitation.
156.To emphasise the point, the wife was taken to the following paragraphs in her affidavit filed 17 August 2014:-
[92]The chronic fatigue became worse and was very debilitating which meant I was struggling to do daily activities.
[93]We still shared caring for [the child] but I was very limited in what I could do and as a result the husband did much more of the care as well as the house work.
[94]From May onwards I was not able to take her to child care anymore. Because of the chronic fatigue I would be in bed until 10 am – 10.30am. I tried to pick her up from child care as much as I could. We shared putting her to bed but I missed many nights because I was very unwell.
[95]From May onwards I also had to give up taking [the child] to music class as it involved active parent participation. I was devastated and cried when I told the husband that I could not take her.
[121]Every concern regarding her health was discussed between the husband and I.
[122]Over the last two years the husband had regular telephone contact with [the child’s] paediatrician. I knew every call and he told me every time he talked to the paediatrician and what the paediatrician suggested.
[125]The decision to enrol her in her current music class was made jointly.
[142]The husband is a devoted and caring father. I have no doubt that he wants the best for [the child] by giving her love and attention.
157.It was put to the wife that her remarks were indicative of a clear and workable shared parenting arrangement. The wife did not necessarily resile from the proposition that the parties had cooperated in the parenting of the child but it was her complaint that the husband gave her no personal or emotional support, with the concession that he did all that was required in respect of hers and the child’s physical needs.
158.It seems that the wife’s position is that the inability of the wife to attend to the child during her period of ill health reinforced and entrenched the enmeshment of the husband with the child and that in effect he took advantage of the wife’s ill health.
159.The wife’s plans for the child in Israel are set out in detail at paragraphs 278 to 293 inclusive.
160.She is clearly cognisant of the importance of the child’s relationship with the husband and she says at paragraph 278 that:-
…if the father does not also relocate I would make a real effort to see that his relationship with [the child] continued after our move.
161.She considers that the child will develop more strongly in Israel because she will be able to perform better as a mother. It is important to the wife that she resume ongoing contact with the child’s grandmothers and extended family.
162.There appears to be a concession by the parties that the child’s Hebrew is better than her English, although I accept the husband’s position that this is changing rapidly by the emersion of the child in primary school.
163.Significant detail is provided as to the living arrangements and the school situated in a suburb of Tel Aviv that the child would be enrolled in.
164.The husband does not respond to these paragraphs in his affidavit in reply filed 2 December 2015. That is not surprising. I suspect that the strong connection that each of the parties has with Israel both in terms of their prior residence, but the continued existence of friends, family and general familiarity with the culture and language would suggest that if that was the only criteria, it would be reasonably practicable for the child to reintegrate easily into Israeli society culture and education.
165.It was put to the wife that the 2015 school report suggests that the child has made solid progress in school. Importantly, it was suggested that how the child was presenting at school was an objective sign of the improvement in the child’s previously obsessional and defiant behaviour. The wife was not prepared to give unequivocal support for that contention but rather attempted to diminish what should be considered a pleasing amelioration of the child’s behaviour at school by suggesting that she was not sufficiently engaged in peer play and friendship networks.
166.At paragraph 338 of her trial affidavit, the wife responded to paragraph 33 of the husband’s affidavit and said:-
…I deny I struggled to form a relationship with [the child], however acknowledge that my relationship with [the child] was strained from around May 2014 to around the time of September. We now have a normal loving mother daughter relationship.
167.It was put to her that this relationship that has now developed occurred during the period of shared-care.
168.Specifically the wife did not agree that the essence of the dispute between the parties was her wanting to return to Israel and the refusal of the husband to consent to the move.
169.The wife considered that this was a factor, perhaps even a significant factor, but it was not the only one. She was generally concerned that up until the trial the husband’s position had been one of strong denigration of her ability to parent the child and any perceived change in attitude by the husband should be seen as of temporary effect only.
170.The wife was again asked to reflect upon the period between 2012 and 2014 when the husband effectively had primary care of the child. The proposition was put to her that his conduct during this extended period said a great deal about him being a parent and his capacity to property parent. The wife appropriately conceded that the husband had provided appropriately for the physical needs of the family but that it was his capacity to regulate the child’s behaviour and to support the child’s relationship with her that was the problem.
171.Notwithstanding the wife’s reluctance to accept the proposition, it is significant that the child has developed a substantial relationship with each of the parties and properly focuses the Court on the extent to which the child’s best interests will be affected if the relationship with either parent is substantially disrupted.
172.The wife did concede that the child had made good progress in terms of her health and education. Unlike the husband, the wife did concede that the husband’s relationship with the child is important. I accept that the wife instinctively recognises this important proposition and genuinely accepts that whatever her views are of the husband, the relationship is highly important to the child.
173.The wife acknowledged that if the child is permitted to relocate to Israel, the contact with the husband will be limited to four weeks. It seems important to her that notwithstanding she accepts this period of time would result in a significant lessening of the time that the child spends with the husband now, it is tempered by her belief that the husband will travel to Israel notwithstanding his current protestation.
174.The wife conceded that the child will miss the husband and that it is not an easy decision to make, but she says that the child will transition easily, she will be happier and thereby better able to parent the child and the separation from the husband can be managed.
175.The child will also be able to keep in contact with the husband via electronic media such as Skype and Facetime.
176.Importantly, the wife said that she had never intended that Australia would be home. Notwithstanding certain declarations made to the authorities in respect of her initial application to take up residency in Australia, it is her evidence that the family always intended to return to Israel.
Can the husband run the business on a part-time basis?
381.Whilst the valuer was not called, by letter dated 4 February 2016 (annexed to the affidavit of the valuer filed 9 February 2016), the husband’s solicitor asked whether the valuation outcome would be the same if the husband’s role in the business was a part-time basis namely 20 hours per week as opposed to the husband being involved on a full-time basis.
382.The response of the valuer is as follows:
[8]Should I have been instructed to assume that the Husband’s role in the business is part-time (20 hours per week), could be performed by an employed/contracted [allied health professional] and does not require any specialist, technical or business knowledge solely held by the Husband, there would be no effect on the EBIT multiple adopted for the purpose of my valuation.
383.The valuer assumed a commercial salary for the year ended 30 June 2015 of about $150,000. Effectively she was being asked to consider whether her valuation outcome would change if the salary adopted by her was $75,000.
384.Accordingly the adjusted maintainable earnings for the 2015 financial year would increase by $75,000 to $215,310 which would add to the enterprise value.
385.The husband was cross-examined at length as to whether the business was able to operate with his time being utilised on a part-time basis.
386.The issue seemed to focus on the extent to which the husband’s business comprised face-to-face interaction with clients. The implication being, that the more face-to-face interaction the more likely that the husband would be engaged on a full-time basis rather than a part-time basis consistent with an on-line business.
387.It is clearly the case that the husband did not provide the documents that may have demonstrated the exact proportion of face-to-face interaction which may have assisted in determining at least the period on average during each work week that the husband was actively engaged.
388.Whilst the husband may have been able to produce some further documents I am not satisfied that the matter would have entitled me to come to the conclusion promoted by the wife and considered by her to be inevitable namely, that in the absence of the face-to-face time evidence the husband must inevitably only work on a part-time basis.
389.The very nature of the husband’s business (and to a significant degree the business operated by the wife) is on-line and involves the proprietors having significant skill and qualification. The business is dynamic and the very fact that there is now a significant shift to on-line and remote business operation does not automatically connote that a business can be operated on a part-time basis by the proprietor in circumstances where with a greater emphasis on a shopfront as opposed to a virtual presence that inevitably means full-time engagement.
390.It may be the case that evidence could have been presented that would suggest that the husband’s business could be operated by a suitably qualified person at a commercial salary of significantly less than $150,000. That evidence was not led and the valuer does not profess to be an expert in the benchmarking of commercial salaries.
391.Indeed if the argument was taken to its logical conclusion there may well be a consideration of whether the goodwill attributed by the valuer was indeed commercial as opposed to personal. Whilst not convinced as to the obligation on the husband to make full and frank disclosure of all relevant documents, I am not satisfied on the evidence as presented that I should re-adjust the valuation outcome as presented in the primary valuation report.
392.On that basis there appears to be no good reason other than to accept the valuation methodology adopted by the valuer.
393.As to II Business, this is the corporate trustee of II Trust and accordingly the net asset backing approach is appropriate.
394.As stated, there are related party loans as set out in the financial statements for the various entities. The husband has the following liabilities:-
Loan payable to II Trust
($100,607)
Loan payable to II Business
($ 88,000)
Total
(Rounded Up) ($189,000)
395.The wife has the following liabilities:-
Loan payable to L Trust
($27,386)
Loan payable to L Business
($295,658)
Loan payable by M Business Pty Ltd
$3,705
Loan payable to II Trust
($152,360)
Loan payable to II Business
($88,807)
Total
(Rounded Up) ($568,000)
396.The valuer considers that there may be an intention on the parties not to seek a payment of the loan accounts that each of the parties have in their various entities.
397.The parties agree to exclude the inter-entity loans and to provide an indemnity by one to the other. If that approach is adopted, then the parties’ separate liabilities in respect of related party loans must be deducted from the value of the entities that they seek to retain given that they are included in the financial statements for each entity and therefore brought to account in the valuation approach as adopted.
398.I determine the value to be attributed to the interests of the parties as follows:
Wife
L Trust
$300,000
L Business
$264,000
Total
$564,000
Less the following
L Trust – Loan (wife)
$27,386
L Business – Loan (wife)
$295,658
Total
$323,044
Balance
$240,956
Husband
II Business
$350,000
II Trust
$407,000
Total
$757,000
Less the following
II Trust – Loan (husband)
$100,607
II Business - Loan (husband)
$ 88,800
II Trust – Loan (wife)
$152,360
II Business – Loan (wife)
$88,807
Total
$430,574
Balance
$326,426
Husband’s mother’s loan
399.The parties are not in dispute as to the amount but the wife does not concede that the money should be treated as a loan.
400.The husband did not call his mother and obviously there is no loan agreement, letter of demand or other documents which would establish that it was the intention of the parties to create a loan and to enter into a binding obligation.
401.In the absence of any evidence to support a loan, I consider that the provision of monies by the husband’s mother should be acknowledge as a contribution for and on his behalf (see Ogilvie v Adams [1981] VR 1041).
Motor vehicles of the parties
402.Neither party was agreed as to the value of the motor vehicle in their separate possession. It is not open to me to guess a value. It does not appear that either party placed much focus on this issue and accordingly I propose to ignore the motor vehicles owned by each of the parties and exclude them from the list of assets.
Husband’s credit cards
403.At separation, the husband alleges that the wife drew down on his ANZ credit card to the sum of $10,425. The wife accepts that she did utilise the credit card but that it was in order to assist her and the child to move into an apartment, pay rent and to furnish the accommodation to a reasonable standard.
404.It could not be said that the use of the credit card by the wife was unknown to the husband. She says that prior to separation she had use of that credit card and that he was aware that it was going to be used at separation. Ultimately I determined that whilst some of the wife’s expenditure could properly be explained by a reasonable need for accommodation and the related costs, I was satisfied that the majority of the expenditure was incurred by the wife without the husband’s knowledge and for purposes not related to accommodation.
405.Having said that, to undertake the adjustment as sought by the husband would be to create an addback in his favour.
406.I do not consider that it is appropriate to do that and given the circumstances of this case I consider it appropriate to treat the ANZ credit card liability and the St George credit card liability as a liability of the husband, but to be brought to account.
407.Accordingly, there will be a liability attributed to the husband of $8,531 in respect of the ANZ credit card and $3,000 in respect of the St George credit card.
Division 7A Tax
408.The husband claims that he has a likely Division 7A obligation in the sum of $58,182. There has been no evidence presented and the sum is in dispute.
409.In any event the treatment that each of the parties seeks in respect of the related party loans may well expose both parties to Division 7A taxation issues. No evidence is presented and I can only assume that the parties are content to take their own separate advice and do the best they can to legitimately minimise any taxation liability that may arise hereafter.
Google AdWords
410.During the course of the setting up of the various businesses, the parties contracted for a Google account. There is apparently a payment in respect of the account and the husband says that he has been making those payments directly from his personal credit card. From the beginning of 2014, the payments were made from the L Business credit card.
411.Whilst it has not been valued (and it may well not be capable of valuation), the parties nonetheless consider it is a valuable business resource because a new account if it is to be established, would require further establishment fees, the charge rate may well be at a higher rate and accordingly, the husband considers that if he were to retain the account (which is his preferred position), it would be reasonable that the wife should be compensated to the sum of $10,000. The wife argues that II Business utilised a credit card linked to L Business to pay the Google account in any event. At present the monthly invoice is between $3,500 and $4,500. The husband has been resistant to paying the amounts to which he is obligated and in any event at present she has the ongoing Google account contract.
412.I propose to determine the matter by preserving the current Google contract in favour of the wife, but requiring an adjustment in favour of the husband.
413.Accordingly, the assets and liabilities of the parties are summarised as follows:-
Assets:
Z property (joint)
$1,250,000
II Business (husband)
$ 326,426
L Business (wife)
$ 240,956
Total Assets
$1,817,382
Liabilities:
Credit cards (husband)
$ 11,531
Mortgage on Z property (wife)
$ 765,000
Total Liabilities
$ 776,531
(Assets less liabilities)
$1,040,851
Superannuation (husband)
$ 63,760
Superannuation (wife)
$ 63
Contributions
414.The parties agree that at the commencement of cohabitation neither held substantial property.
415.During the course of the relationship and marriage, each of the parties worked cooperatively for the general financial wellbeing of the family. The wife generated income during a period that the husband studied for his MBA. The husband generated an income during the period that the wife suffered ill health and debilitation.
416.Each of the parties undertook duties as a homemaker.
417.I do not consider that there are any factors in respect of the parties’ conduct towards each other or during the course of the relationship which would warrant an adjustment to reflect unequal contribution.
418.There is however a concession by the wife that a sum of at least $90,000 was provided by the husband’s mother which can be reflected directly in the value attributed to the interests of the parties in the Z property.
419.In White & White (1982) FLC 91-246, the Full Court observed at page 77,365:-
His Honour went on to discuss the question of whether the financial contribution of the husband’s father should be regarded as a contribution by the husband under sec. 79(4) or “as a fact or circumstance relevant under section 75(2)(o)”. His Honour preferred the latter view as expressed in Antmann and Antmann (1980) FLC 90-908 at p. 75,745:- but in the circumstances of this case we are of the opinion that the financial contributions of the husband’s father should be regarded as indirect financial contribution by the husband.
420.In Gosper & Gosper (1987) FLC 91-818, Fogarty J held at 76,168:-
In many such cases that gift was made only because of that relationship and in reality as a means of benefiting that relative in that marriage. It was made “because she was a daughter of that family” as was said in W’s case at p. 75,527.
It is clearly a “financial contribution” and one “made directly” to the acquisition, conservation and improvement of property. In such cases it is open to the Court to conclude, if the facts justify it, that it was made “on behalf of one spouse”.
421.Accordingly, I propose to treat the money identified as emanating from the husband’s mother as a contribution of the husband.
422.In Pierce & Pierce (1999) FLC 92-844 at page 85,881, the Full Court said:-
In our opinion it is not so much a matter of erosion of contribution but a question of what weight should be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contributions, in this case of the husband, regard must be had to the use made by the parties of that contribution.
423.Accordingly it is a matter of weight to be given to the respective contributions of the parties but in this case to reflect the money contributed by the husband’s mother.
424.The obligation is to achieve a result that is appropriate, just and equitable but it is not an arithmetical exercise.
425.It is however significant and in respect of an asset pool of approximately $1,040,851 it must be given appropriate recognition together with the other contributions of each of the parties.
426.I propose to adjust the contributions as between the parties to reflect a 53 per cent/47 per cent adjustment in favour of the husband.
Section 75(2) factors
427.The husband argues that if the Court decides that the child should reside primarily with one parent then it would be appropriate for an adjustment of 5 per cent to be made in favour of that parent pursuant to s 75(2)(c).
428.The parties are in good health and I consider that they have similar earning capacities. They hold qualifications of a not dissimilar level. There is no suggestion that the parties will not do other than appropriately care for the child and I note that the parenting orders reflect that the child will spend significant and substantial time with the husband.
429.For her part, the wife considers that the significant 75(2) factor should be an adjustment of 10 per cent to reflect the child living primarily with her.
430.An adjustment must not only focus on the quantum of the percentage but rather, to have regard to whether an adjustment produces a meaningful outcome thereby reflecting the appropriate weight that is to be given to s 75(2) factors.
431.In a pool of approximately $1,040,851, a 10 per cent adjustment would create a differential in favour of the wife of $208,170.
432.I consider that to be an overly generous outcome given that the child will spend significant time with the husband and that the financial obligations in respect of the child are likely to fall more or less evenly between the parties.
433.I consider a 5 per cent adjustment adequately reflects the increased and/or additional financial obligation placed upon the wife arising from the parenting orders.
434.Accordingly, the adjustment between the parties should reflect a division of 52 per cent to the wife and 48 per cent to the husband.
435.The total net property of the parties is $1,040,851 and accordingly, an adjustment of 52 per cent in favour of the wife would see her with a net outcome of $541,242.
436.On the basis that the wife retains interests in property to the sum of $240,956, the husband is required to pay a settlement sum to the wife of $300,286.
437.Given the circumstances in which each of the parties find themselves and the need to transfer the wife’s interests in the Z property to the husband and for each of the parties to separate any interests that they may have in the business entities of the other, I propose to allow the husband 60 days to discharge his obligation as to the payment of the settlement sum.
438.The orders will reflect the desire of the parties to separate their financial interests and there will be a need for each of them to indemnify the other in respect of the inter-related party loans.
Furniture and effects
439.At paragraph 414, the wife complains that at separation the husband retained most of the furniture situate in the Z property. The same complaint is mirrored by the husband in paragraph 189. The parties appear to have agreed for an exchange of certain items between them. I do not propose to make any order in respect of the division of furniture and effects between the parties.
JEWISH DIVORCE
440.The wife seeks an order that the husband grant her a gett (Jewish bill of divorce) and that he do all things necessary to attend upon a Jewish Ecclesiastical Court in order to effect the grant of a gett.
441.I am left in some uncertainty at the conclusion of the proceedings as to whether the position of the husband is that he now accepts that he should assist the wife in obtaining a gett and if so then clearly there is no need to consider whether the Court has the jurisdiction to make the order as sought by the wife.
442.Under Jewish law, a divorce can be accomplished only by the parties. It is effected by the formal delivery by the husband and the acceptance of the wife of a bill of divorcement (a gett) under the supervision of a Rabbinical Court namely, the Beth Din. The parties are divorced and free to marry again after the gett has been delivered and accepted.
443.Outside of Israel the Beth Din lacks judicial power and thus an aggrieved spouse will often require recourse to the civil courts. Without a gett, a woman will be unable to remarry at Jewish law and for a man it will be extremely difficult to do so. Such as woman is termed as an “agunah”, literally one who is “chained” to a man from whom she is unable to procure a gett. Any child or children born to an “agunah” will bear the stigma and burdens of bastardy. It can have consequences that flow through the descendants who forever may be unable to rectify their situation.
444.The Court must consider two factors in determining whether an order should be made. Whatever the Court does, it must be consonant with the requirements of Jewish law or otherwise a gett may be void for unlawful duress and the Court’s actions therefore futile. Secondly, from a public policy perspective, if not a constitutional one, civil courts should not be seen to become involved in religious matters.
445.In Shulsinger & Shulsinger (1977) FLC 90-207 the husband had entered an undertaking to attend the Beth Din to grant the wife a gett. In return, the wife undertook not to pursue any claim for ancillary relief. The husband breached the undertaking. The Full Court held that on the facts in that case the Court could not issue an injunction to the same effect as the undertaking, but could require (and by implication enforce) such an undertaking on the grounds of justice. The Court held that such enforcement did not contravene s 116 of the Constitution.
446.In 2001 the Family Law Council released a report to the Attorney General entitled “Cultural community divorce and the Family Law Act 1975; A proposal to clarify the law”. The report notes criticism of the Shulsinger (supra) case and highlights that it should be read narrowly and confined to its own rather unusual facts.
447.In Steinmetz & Steinmetz(No 2) (1981) FLC 91-079 the Full Court held that a refusal to grant a gett was relevant to a spousal maintenance application where the refusal effectively prevented the wife from remarrying and obtaining financial support from a second husband. The trial judge ordered that the husband pay lump sum maintenance of $4,000 to the wife but the sum was to be reduced to $2,000 if the husband were to grant the wife a gett. By refusing to grant the wife a gett the husband could effectively prevent the wife from remarrying and gaining the benefit of additional financial support which might come to her from marriage. The Full Court agreed with the trial judge’s approach. The circumstances in Steinmetz (supra) are not present in the current consideration. The wife is keen to secure a gett as part of a process to separate herself financially and spiritually from the husband.
448.In Gwiazda & Ber (unreported, Family Court of Australia, Emery J, 23 February 1983), the wife, who refused to accept a gett, was ordered, pursuant to the general injunctive power in s 114(3), to appear before the Melbourne Beth Din and to accept a gett (if and when one was ordered by the Beth Din and granted by the husband). The order further required her to give validity and operation, according to Jewish law to any such grant of a gett by the husband or order of the Beth Din. The judge specified that the order was not to be construed by in any way inhibiting or influencing any deliberation or decision of the Beth Din. Furthermore, the order was not to be construed as in any way inhibiting the wife from making an application or request to the Beth Din or denying her any right that she would otherwise have. Emery J accepted that:-
If this court does have jurisdiction to require the wife to take any action, it could only be to submit to the jurisdiction of the Rabbinical Court. She could not be ordered to consent to any order or procedures except those involved in putting into effect of any orders made by that tribunal… this court could not place any fetter on her right to make any application to or submission to such a tribunal. In like manner the Rabbinical Tribunal could not be required or ordered to grant a get.
449.His Honour considered that the Court was not being asked to determine what the principles were in relation to the religion of a party, but rather, simply to require that a party submit to the jurisdiction of a tribunal “set up well beyond time immemorial…by the religion of which the party is a professed adherent”.
450.In Shvemer & Shvemer [2000] FamCA 1769, Carter J refused a wife’s application to compel the husband to provide her with a gett, finding the Court did not have the power to make the order sought. His Honour did not deliberate on why such an order could not be made.
451.In Joachim & Joachim (unreported, Family Court of Australia, Hase J, 13 September 1996) Hase J refused an application by the husband to compel the wife to accept a gett finding it to be contrary to s 116 of the Constitution and outside of the Court’s jurisdiction.
452.In general, there is a clear separate between religious and civil authorities. It is accepted that the law leaves people to follow their own religious practices and beliefs subject only to the operation of ordinary civil and criminal laws. This approach derives from various sources.
453.Section 116 of the Constitution provides that:-
The Commonwealth shall not make any law for establishing any religion, or from imposing any religious observance, or for prohibiting the free exercise of any religion…
454.In only providing that the Commonwealth “shall not make any law”, the Constitution arguably only restricts that the legislative power of the Commonwealth, that is, the Federal Parliament. It does not restrict the executive or judicial powers of the Commonwealth, nor does it constrain the states of Australia.
455.In Reicher & Reicher [2008] FamCA 108, Young J made the following order by consent:-
That the husband forthwith appear, if and when called upon by the wife to do so, before the Melbourne Beth Din (Jewish Religious Court) and deliver into her hand a gett (Jewish Bill of Divorce) if and when the same has been ordered, directed or recommended by the said Religious Court and do all other acts and things as may be required of them to give validity and operation, according to Halakhah (Orthodox Jewish law) to any such order, direction, recommendation or grant by the said Religious Court for a divorce in accordance with Orthodox Jewish law, provided always and it is hereby declared that this order not be construed as in any way inhibiting, directing, influencing, or controlling any deliberation, decision, order, decree, direction or recommendation of the said Religious Court or in any way inhibiting the husband or wife in making any application, request or submission to the said Religious Court or, save as aforesaid, to deny him or her any right or privilege he or she would otherwise have.
456.I do not consider that I have the power to make the order as sought by the wife. To do so would be to interfere in religious matters that do not involve behaviour that is in breach of the general civil or criminal law.
457.It has not been argued that the desire of the wife to obtain a Jewish divorce is in some way necessary as a corollary to the parenting orders. Indeed, the parties have not impressed as adopting to any significant degree orthodox Jewish law in their day to day practices.
458.Nor do I think it appropriate that the Court’s power to order injunctions should be utilised to require a party to attend a Jewish Ecclesiastical Court.
459.I do not consider that there is a concept of parallel law. The order that the wife seeks would have the consequence of elevating Jewish law to the status of civil law in Australia in particular the provisions of the Act. In any event, whatever qualification might be added to an injunctive order so that it is not seen as unnecessarily interfering with the Beth Din and its deliberations, nonetheless it compels the subject part to undertake and carry out a certain course of conduct.
460.If it is generally recognised that it would be inappropriate to enforce such an injunctive order by reference to the contravention and contempt proceedings of the Act, I am not of the view that it is appropriate to make the order in the first place.
461.Accordingly, I do not propose to make orders as sought by the wife in respect of the attendance of the parties before the Beth Din of Melbourne in respect of
any application that may be made by the husband or the wife for a Jewish bill of divorce.
I certify that the preceding four hundred and sixty one (461) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 26 May 2016.
Associate:
Date: 26 May 2016
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