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
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- FERRO & KOPEL [2016] FamCA 409
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- [2016] FamCA 409
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CaseChat Overview and Summary
The court was required to determine several key issues. Firstly, whether to permit the wife's relocation with the child to Israel. Secondly, how to divide the parties' matrimonial property, including their respective business enterprises and the residential property. Thirdly, the court had to consider the wife's application for an order compelling the husband to grant a gett, and its own jurisdiction to make such an order.
In relation to the relocation, the court ultimately did not permit the wife to relocate with the child to Israel, making orders for the child to live with the wife and spend substantial and significant time with the father. The court also made detailed orders regarding shared parental responsibility for the child, with the wife having sole responsibility for education and health issues, subject to consultation with the husband. Regarding property, the court considered the parties' contributions, including those of the husband's family, and made an adjustment in favour of the husband, but the overall adjustment resulted in a differential in favour of the wife, requiring the husband to pay her a settlement sum. The court declined to make an order for the husband to grant a gett, concluding it did not have the power to make such an order, and did not consider the constitutionality of such an order within its jurisdiction.
Orders
Orders of the court
(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 Act 1975 (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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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