HAMOUD & TESUT

FAMILY COURT OF AUSTRALIA

HAMOUD & TESUT

[2017] FamCA 419

FAMILY LAW – CHILDREN – Final orders – International relocation – best interests of the child – meaningful relationship with both parents – where the child was abandoned by both parents at a young age – where the child seeks to return to the Middle East with the father – where returning would not promote a relationship with the mother – where the child may be returning to a fantasy – not in the best interests of the child to relocate.

FAMILY LAW – PROPERTY – Final orders – alteration of property interests – consideration of contribution by the parties – just and equitable – where the husband receives 80 per cent of the total asset pool – where the wife receives 20 per cent of the total asset pool.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 75, 79

AMS v AIF (1999) 199 CLR 160
Bevan & Bevan [2013] FamCAFC 116
Chorn & Hopkins [2004] FamCA 633
Hickey & Hickey and Attorney General for the Commonwealth of Australia (2003) FLC 93-143
La Costa & La Costa [2007] FamCA 1176
M & M [1998] FamCA 42
Stanford v Stanford (2012) 247 CLR 108
Starr & Duggan [2009] FamCAFC 115
Truman & Truman [2013] FamCA 765
Watson v Ling (2013) FLC 93-527
Zahawi & Rayne [2016] FamCAFC 90

APPLICANT:

Ms Hamoud

RESPONDENT:

Mr Tesut

INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan Lawyer

FILE NUMBER:

PAC

3985

2013

DATE DELIVERED:

15 June 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Parramatta

JUDGMENT OF:

Berman J

HEARING DATE:

24, 25, 28, 29, 30 November 2016 and 1 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Snelling

SOLICITOR FOR THE APPLICANT:

Cambridge Law

COUNSEL FOR THE RESPONDENT:

Mr Guterres

SOLICITOR FOR THE RESPONDENT:

Thurlow Fisher Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Leis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan Lawyers

Orders

That all previous parenting orders in relation to B born … 2006 (“the child”) be discharged.
That the husband have sole parental responsibility for the child.
That the husband shall advise the wife in writing (electronically or otherwise) and provide his view about any major issues affecting the child’s health (including dental) and education and shall consult with the wife about such issues, but if no agreement is reached between the parties THEN the husband shall make the final decision and advise the wife in writing of that decision.
That the child shall live with the husband.
That the child shall spend time with the wife as may be agreed between the parties but in any event subject to the child’s wishes.
That the husband shall be restrained and an injunction granted restraining him from relocating or removing the child from the Commonwealth of Australia.
That the child B born … 2006 be placed on the Family Law Watchlist.
That the wife be at liberty to communicate with the child by telephone or Skype at all reasonable times PROVIDED that such times shall be no more than twice per week and the husband shall assist the child to receive the phone call or Skype communication PROVIDED that the wife shall initiate such communication.
That both parties shall keep the other advised of contact telephone numbers and the address at which the child shall reside.
That the husband be restrained and an injunction granted from denigrating the wife in the presence of the child or from permitting any other person to do so.
That the parties do all things necessary to forthwith engage and enrol the child in a course of treatment and re-unification therapy with Dr C or such other child psychologist as may be agreed for the purpose of attempting to promote and reinstate the child’s relationship with the wife PROVIDED THAT the cost of such therapy be shared equally.
That the nominated psychologist shall be provided with a copy of the following documents:-
·Report of family consultant Mr D;
·Report of Dr C;
·Reasons for Judgment;
·A copy of these orders.
That the child shall attend upon the nominated psychologist for a maximum of five (5) sessions which shall be conducted at the discretion of the psychologist and in his or her sole discretion such sessions shall include observed interaction of the parties and either of them with the child.
That the order appointing the Independent Children’s Lawyer be discharged.
That in full and final settlement of all claims that either party has against the other by way of property settlement pursuant to the provisions of the Family Law Act 1975 (Cth) (as amended) (“the Act”):-
(a)That on or before ninety (90) days from the date of this order the husband do pay to the Trust Account of Cambridge Law for and on behalf of the wife the sum of ONE HUNDRED AND SEVEN THOUSAND FOUR HUNDRED AND THIRTY SEVEN DOLLARS ($107,437) (“the settlement sum”);
(b)That as an from the date of this order the wife’s estate and interest both at law and in equity in the following be and the same are hereby vested in the husband to the intent that the husband shall retain the same for his sole use and benefit absolutely free from any further claim or demand by the wife:-
(i)His interest in the property situate at E Street, Suburb F (“the Suburb F property”);
(ii)His interest in any motor vehicle held by him;
(iii)Savings and investments in his sole name;
(iv)Equipment, furniture, furnishings and articles of domestic use and ornaments currently in his possession;
(v)His personal effects;
(vi)His superannuation and any other work related entitlements;
(vii)Any other real and/or personal property and/or financial resources of the husband in the husband’s name and/or possession not otherwise specified herein.
(c)That as and from the date of this order the husband’s estate and interest both at law and inequity in the following be and the same are vested in the wife to the intent that the wife shall retain the same for her sole use and benefit absolutely free from any further claim or demand by the husband:-
(i)Savings and investments in her sole name;
(ii)Equipment, furniture, furnishings and articles of domestic use and ornaments currently in her possession;
(iii)Her personal effects;
(iv)Her superannuation entitlements;
(v)Any other work related benefits;
(vi)Any other liability;
(vii)Any other real or personal property and/or financial resources of the wife in the wife’s name and/or possession not otherwise specified herein.
(d)As and from the date of this order each party shall indemnify the other and keep the other forever indemnified with respect to any liabilities, past, present or future which have accrued or will accrue from time to time in their respective names;
(e)That save as shall be necessary to give effect to these orders and subject to the wife’s consent, the husband shall be restrained and an injunction granted restraining him from selling, disposing of or encumbering the Suburb F property.
(f)That in default of payment of the settlement sum, the husband shall cause the Suburb F property to be forthwith placed on the market for sale by public auction or private treaty and from the net proceeds of sale following the payment out of the costs of sale, the net proceeds shall be disbursed such that the wife shall receive the settlement sum as provided herein or as much as is unpaid and remains outstanding together with default interest of ten (10) per cent per annum and the husband shall receive the balance thereafter remaining.
(g)That in circumstances where the parties or either of them shall fail, refuse or neglect to sign any document necessary to give effect to these orders THEN a Registrar of this Court pursuant to section 106A of the Act shall sign such document or documents as may be necessary upon proof by affidavit that a party has been requested to sign such document but has neglected or refused to do so.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hamoud & Tesut has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: PAC 3985 / of 2013

Ms Hamoud

Applicant

And

Mr Tesut

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Amended Initiating Application filed in the Federal Circuit Court on 28 October 2013 Ms Hamoud (“the wife”) sought parenting orders in respect of the child B born in 2006 (“the child”) and in addition, orders for property settlement and alteration of property interests following a relationship of about 8 years. Mr Tesut (“the husband”) opposes the wife’s orders by Amended Response filed 27 November 2013.
A summary of the orders sought by the wife are as follows:-
(1)That the parties sign all documents to affect the sale of property located at E Street, Suburb F (“the former matrimonial home”) with the sale price to be mutually agreed between the parties or otherwise as determined by the President of the NSW Division of Australian Institute of Valuers and Land Administrators. With the proceeds of sale to be divided 60 per cent in favour of the wife.
(2)That the husband’s superannuation entitlements be split on a 60:40 basis in favour of the wife.
(3)That the wife have sole parental responsibility of the child and that the child live with her.
At the time of filing, the wife’s Amended Initiating Application sought orders for the child’s return to Australia and orders that the child be placed on the Airport Watchlist. In accordance with orders made 28 November 2013, the child has since been returned to Australia and these orders are not now pressed.

The wife had previously commenced proceedings on 17 September 2013 seeking orders only with respect to finalising the parties’ property settlement. She subsequently amended that Application to seek parenting orders also.
A summary of the orders sought by the husband are as follows:-
(1)That the husband retain all interest in the former matrimonial home.
(2)That the wife retain monies receipted to her at separation in the amount of US$27,500 and that otherwise each party retain all assets in their respective possession or control.
(3)That the husband retain 100 per cent of his superannuation entitlements.
(4)That the husband have sole parental responsibility for the child and that the child live with the husband and spend time with the wife as agreed between the parties.
(5)That the wife be permitted to telephone the child and that the husband will co-operate with such communication attempts.
The child is currently 10 years old and resides with the husband in the former matrimonial home. She has not seen her mother regularly since 2014 and has expressed her wish not to do so. The husband says it is the child’s wish to return to her extended (paternal) family in the Middle East.
The wife relies upon the following documents:-
(1)Amended Initiating Application filed 28 October 2013;
(2)Trial Affidavit filed 26 October 2016;
(3)Financial statement filed 27 October 2016;
(4)Affidavit of Ms G filed 3 February 2014;
The husband relies upon the following documents:-
(1)Response to Initiating Application filed 27 November 2013;
(2)Financial statement filed 4 November 2016;
(3)Trial affidavit filed 28 October 2016;
(4)Affidavit of Mr Tesut filed 28 October 2016;
(5)Affidavit of Mr I Tesut filed 27 October 2016;
(6)Affidavit of Mr J Tesut filed 27 October 2016;
(7)Affidavit of Ms K filed 28 October 2016;
(8)Affidavit of Mr L Tesut filed 4 November 2016.
The Independent Children’s Lawyer (“ICL”) was appointed on 7 February 2014. The ICL relies upon the following documents:-
(1)Family Consultant Memorandum to Court filed 4 February 2014;
(2)Family Report dated 4 October 2014;
(3)Therapeutic Report dated 23 November 2016.

Chronology

1950

Husband born in the Middle East

1970

Husband migrates to Australia

1972

Husband marries first wife, Ms M

1974

Husband becomes an Australian citizen

1974

Husband commences employment at Company Q

1973

Husband’s first child born (“Mr N”)

1975

Husband’s second child born (“Mr L”)

1976

Husband’s third child born (“Mr O”)

1984

Wife is born

1988

Husband’s fourth child born (“Ms P”)

1988 – 1989

Husband has accident whilst working at Company Q and is unable to work for one year. He receives $90,000 compensation

1989

Husband retires from Company Q

2001

Husband and first wife separate

2001

Husband purchases unit at E Street, Suburb F, NSW for $280,000 (unencumbered)

December 2001

Parties meet in the Middle East (husband then returns to Australia for 2 years and 4 months). Note: husband says parties met in 2003.

2004

Parties marry in.

January 2005

Husband returns to Australia

March 2005

Wife moves to Australia to live with husband

2006

Date of birth of parties child, B

10 June 2008

Wife and child return to the Middle East

October 2008

Husband returns to the Middle East

December 2010 – 27 April 2011

Husband returns to Australia

25 February 2011

Husband instructs his adult son Mr L to receive rental income on husband’s behalf

20 December 2011 – 20 April 2012

Parties and child return to Australia for a holiday

20 April 2012

Parties and child return to the Middle East

10 September 2012

Wife returns to Australia

27 September 2012

Wife’s Australian permanent residency expires

2 October 2012

Husband granted “full custody” of child by Court in the Middle East

October 2012

Husband reports child commences “boarding school” in the Middle East. Wife fears child is in an orphanage

20 November 2012

Parties divorce

December 2012 – April 2013

Husband returns to Australia and stays with wife. Child remains in the Middle East at boarding school or living with paternal grandmother and paternal aunt.

April 2013

Husband return to the Middle East

17 September 2013

Wife commences proceedings in the Federal Circuit Court of Australia

23 October 2013

Husband returns to Australia for daughter Ms P’s wedding. He does not bring the child with him

23 November 2013

Husband returns to Australia permanently. He does not bring child with him

26 December 2013

Child arrives in Australia with paternal grandmother and is collected from airport by husband and paternal relatives

27 December 2013

Husband takes child to see wife at R Park, Suburb R. Wife has not seen child for over 12 months

27 December 2013 – 6 January 2014

Husband takes child to visit wife and reports child is “reluctant” to spend time with wife

6 January 2014

Incident occurs at husband’s house between wife and husband. Husband calls the police and an Apprehended Violence Order is made

7 February 2014

ICL appointed

Early 2014

Child begins seeing psychologist, Ms S

Early 2014 – August 2014

Wife and child commence supervised visits at Suburb R Contact Centre. Visits cancelled shortly thereafter due to child’s aggressive behaviour

27 August 2014

Proceedings transferred from Federal Circuit Court of Australia to Family Court of Australia

7 October 2014

Family Report prepared

2015 – 2016

Child attends upon Dr C

2016

Wife remarries

10 May 2016

Wife applies to become Australian citizen

Background

The parties both originate from the Middle East and members of both parties’ extended families still reside in Middle East.
The parties met in Middle East in December 2001 in circumstances of an arranged marriage.
The husband migrated to Australia in around 1970 and married his first wife in 1972 in Sydney, there are four adult children of that relationship.
The husband’s children all from his previous marriage reside in Australia with children of their own.
After migrating to Australia, the husband worked in manufacturing until 1974 when he commenced work at Company Q.
The husband ceased employment in around 1989 after suffering a workplace injury in 1988 which resulted in two slipped discs in his lower back. This injury prevented the husband from working for a period of one year. The husband sought compensation for this injury and in 1989 received compensation in the sum of $90,000.
The husband and his first wife separated and divorced in around 2001.
From the proceeds he received at separation following property division the husband purchased the former matrimonial home for $280,000. The property is now valued at $515,000.
The parties were married in the Middle East in 2004. From the time of engagement until the date of marriage, the husband resided in Australia and the wife remained in the Middle East.
From the date of marriage until early 2005 the parties resided in the Middle East.
The husband estimates that at the commencement of the relationship his assets totalled $349,600 and he had no liabilities. The wife had nominal assets at the commencement of the relationship comprising of money (estimated $500) and jewellery (estimated $2,000). She had no liabilities.
The husband returned to Australia in early 2005 and the wife followed in March 2005 having been granted a visa to travel to Australia.
The child was born in Australia in 2006.
The parties resided in Australia from 2005 until their return to the Middle East in 2008. During this period there is, again, competing recollections of the parenting roles that each party undertook. The wife says she primarily cared for the child. The husband disputes the wife’s contention and reports caring for the child in circumstances where the wife was not interested in the child and lacked attachment.
The wife says she was the victim of physical and financial abuse throughout the relationship with the husband.
The husband reports that during this period the wife missed her family very much and so he offered for the wife and child to return to the Middle East to see her family. The wife recalls the husband saying this would be a “holiday” and the parties would be returning to Australia in “3-6 months”.
The wife and child returned to the Middle East in June 2008 and remained there until December 2011. The husband followed shortly thereafter after having rented the former matrimonial home for $360 per week. The rental was paid into his son, Mr L’s, bank account.
The parties resided in the husband’s brother’s property (which was next door to the paternal grandmother’s property) rent-free. The parties’ income came from the rental income of the former matrimonial home and husband says he held approximately $30,000 in savings. The husband retained all the parties’ passports during this time.
The wife did not enjoy her time in the Middle East. She recalls cooking for the paternal family and taking care of the paternal grandmother. She complains of her freedom being restricted. The husband denies such accounts and says the wife had access to money and was able to freely leave the home.
The husband recalls the child as thoroughly enjoying this period. He said that with his six sisters and two brothers in the Middle East there were many children for the child to play with. He recalls the child enjoying spending time with him in the garden and being openly affectionate to the paternal aunt.

The husband says from the period of 2008 to 2011 he was the child’s primary carer and that the child chose to spend time with him and the paternal grandmother. The wife denies this.
From about December 2010 to 27 April 2011 the husband returned to Australia for business purposes. He suspected that the wife was taking money from the parties joint Commonwealth Bank Account to give to her family. The husband arranged for his son, Mr L to receive all income and pay the expenses of the former matrimonial home. The wife denies withdrawing significant sums from the account..
The family returned to Australia in December of 2011.
The parties and child resided with the husband’s family during this time rather than evict the tenants of the former matrimonial home. The husband enrolled the child in school so she did not fall behind in her education during this period.
The parties returned to the Middle East on 20 April 2012.
The wife says the husband would not permit her to return to Australia and she was conscious that her permanent residency visa would expire on 27 September 2012. The husband did not consider this a priority.
On 10 September 2012, the wife returned to Australia without the husband and child.
The husband alleged the wife took, without his permission the sum of US$27,500 in cash, men’s rings, the child’s jewellery, video cameras and a digital camera. The wife denies these allegations and says she only took $400 AUD and a camera. She says the $400 AUD was returned to the husband upon his visit to Australia.
The wife says the husband would not tell her where her daughter was in the Middle East and she had to spend $1,000 in order to find her at T School located in U Town, the Middle East. She says she begged the husband to return to Australia with the child. The husband denies this and says he requested her to return to the Middle East.
The child commenced at T School when she was approximate 5 years old. The school is a 5-day per week boarding school and the child returns to the husband’s home on the weekends. The wife believes it was a boarding school or an orphanage.
The husband filed for divorce in the Middle East which was granted on 20 November 2012. He then commenced parenting proceedings and was granted “full custody” of the child on 2 October 2013 under the laws of Country H, the Middle East.
During this time the wife was renting in Australia. She had obtained casual employment and received Centrelink benefits.
The husband returned to Australia for a brief period in December 2012 at which time he lived with the wife for approximately 4 months. The wife says she only permitted the husband to reside with her at this time as he promised to return the child to Australia. The husband shortly thereafter returned to the Middle East. He returned to Australia in late 2013 for his daughter’s wedding without the child.
Following orders made by a Federal Circuit Court Judge on 28 November 2013, the child (accompanied by the paternal grandmother) returned to Australia on 26 December 2013.
The wife had not seen the child for over 12 months. Upon the child’s arrival, the wife saw the child regularly for a period of 10 days, until 6 January 2014.
On 6 January 2014, there was an incident at the husband’s house involving the wife. The husband alleges the wife was attempting to take a photo album that belonged to him. Both parties alleged the other as the perpetrator of violence. An Interim Apprehended Violence Order was made naming the child and the husband a protected persons and subsequently amended to name the husband only. The Order has now expired.
Both the husband and the child are Australian citizens. At the time of final hearing, the wife was in the process of applying for citizenship.
The child currently resides with the husband and spends no time with the wife. The child and her father reside in the former matrimonial home. The husband is in receipt of a Centrelink pension.
The husband says the child is unhappy in Australia and wishes to return to her extended paternal family in the Middle East.
The wife says she has seen the child on approximately 8 occasions since her arrival to Australia on 26 December 2013. She has only communicated with the child via the telephone on a few occasions.
An arrangement was entered into in 2014 whereby the wife would spend time with the child at a children’s contact centre however this ceased as the child was reported to have spat on the wife and other children at the centre.
A subsequent arrangement was reached for the wife to spend time with the child at a mutual friend’s home. This ceased when the child threatened the wife with a knife.
The child has seen several psychologists since returning to Australia including Mrs S and Dr C.
The wife subsequently remarried in 2016.
Whilst the wife shares parental responsibility for the child, she has not been notified of the child’s schooling and holds genuine concerns for the child’s wellbeing.
The wife does not believe she can return to the Middle East as she would not have any custody rights under religious law. She says the husband is clearly a resident of Australia as evidenced by his receipt of Centrelink benefits.
The wife seeks that the child remain in Australia and receive psychological counselling for her trauma.
Regardless of whether the husband is permitted to relocate with the child he will sell the former matrimonial home. If the husband is required to stay in Australia, he will rent a property here.
If he is permitted to return to the Middle East, the husband is willing to make a yearly trip to Australia so the child can visit her mother and so he can visit his other children. He is prepared to pay for the child’s return flight ticket on one occasion per year.
Both parties say they are agreeable (and encouraging) of a relationship with the other to facilitate the bests interests of the child.

Previous court orders

There have been various court orders made over the course of these proceedings. Of particular importance are the following:
(1)On 27 September 2013 that the wife have sole parental responsibility for the child and the child to live with the wife.
(2)On 28 October 2013 that the child be placed on the Airport Watchlist.
(3)On 28 November 2013 all prior orders be discharged except the Airport Watch list order and orders that the wife is to receive 50 per cent of the total rental income received from the former matrimonial home until the child is returned to Australia. Upon the child’s return, the child’s passports must be surrendered at the Federal Circuit Court. That the parties have equal shared parental responsibility and the child live with the husband (in Australia) and spend time with the wife as agreed between the parties. Both parties were restrained from removing the child from the Commonwealth of Australia. A section 11F Family Report was ordered.
(4)On 7 February 2014 orders were made by consent for the child’s time with the wife to occur at a children’s contact centre every Friday and (alternating) Saturdays and (intervening) Sundays and each party was to facilitate the child’s telephone time for the other party.
(5)On 22 April 2014 a suspension of all previous orders with respect to the child were made and orders that the child live with the husband and each parent shall have parental responsibility at such times as the child is in their care with the wife’s time to be on a supervised basis at a children’s contact centre. That the wife have telephone time with the child on any night she does not spend with the child.
(6)On 25 November 2014, Judge Harman made orders transferring the proceedings to the Family Court and suspending the wife’s time with the child and allowing her time with the child each Monday and Thursday for 2 hours with time to occur at the home of Mr & Mrs V.

PARENTING PROPOSALS OF THE PARTIES

The wife opposes the relocation of the child to the Middle East as sought by the husband.
In her Amended Initiating Application the wife sought that the child live with her and that she have sole parental responsibility. At the date of the filing of the Amended Application the child resided with the husband in the Middle East.
At the commencement of the proceedings, she conceded that the child was likely to remain in the primary care of the husband and that any likelihood of the child spending time with the wife would be dependent upon the child’s attendance for psychological or psychiatric intervention and for the wife to engage in reunification therapy. Thereafter and predicated upon the relationship being re-established, the child would spend time with the wife commencing with two hours each week, extending to four hours each weekend unsupervised and then each alternate weekend from Saturday to Sunday and half of the school holidays.
In final submissions the wife’s counsel conceded that the orders sought were untenable and adopted the proposal of the Independent Children’s Lawyer (“ICL”) that the child live with the husband and that he have sole parental responsibility.
The ICL was not supportive of the husband’s application to relocate the child to the Middle East, although the ICL did promote the husband being at liberty to holiday in the Middle East with the child for a period of four weeks per year provided that he gives four weeks written notice to the wife of the intended dates of travel, the proposed destination, copies of travel itinerary and the address and contact number of the destination where the child can be contacted.
The ICL submitted that the wife should be at liberty to communicate with the child by telephone or Skype. Both the child and the husband should be removed from the Family Law Watchlist.
The wife does not support the child being removed from Australia for any purpose without her consent.
Accordingly, the parties are agreed as to parental responsibility and that the child will remain with the husband.
The wife does not seek any specific orders for the child to spend time with her but considers that as the child matures she may well seek a relationship with the wife.
The focus of the parenting issues is on whether the husband should be permitted to return to the Middle East with the child and if so upon what terms and conditions.

THE EVIDENCE

At the commencement of the proceedings the Court was provided with a balance sheet setting out the assets and liabilities of the parties and the proposed add-backs.
The parties tendered by consent a report of Dr C (the psychologist) detailing her involvement with the parties and the child between 20 October 2015 and 18 November 2016. The report is in short form and provides the basis for her oral evidence. The report is marked exhibit “1” in the proceedings.

The wife

The wife has now re-partnered and married Mr W in early 2016. They commenced cohabitation in October 2015 and lived together in his apartment.
The wife is mistrustful of the husband and members of his family and does not want him to know where she lives.
She believes that on every occasion that she leaves the house she is being followed.
The wife alleged that the husband was financially controlling. Any money that she had came from him. She did not have access to his bank accounts. She draws a clear distinction and comparison with the financial arrangements that she endured with the husband as compared to how she and her current husband share their financial resources.
Prior to commencing cohabitation with her current husband, the wife lived in an apartment at Suburb F. The rent was $380 per week. The wife needed financial assistance in order to pay the rent and relied on a friend who held the lease in his name. The wife met this person in 2013 and he started paying the wife’s rent in 2014. She describes him as a kind person and said he wanted nothing more than to assist her.
The wife also received a loan from Ms G of $10,000. All monies received were recorded on a piece of paper.
In May 2014 the wife received an insurance payout of $75,000 for injuries sustained in a motor vehicle accident. An amount of $35,000 was paid for legal fees and she received $40,000 which was disbursed to repay personal loans. She purchased a motor vehicle for $3,000 and the balance of monies was expended on the exigencies of life.
Personal loans to the wife and her subsequent repayment of those loans were all cash transactions.
The wife filed an Application for Spousal Maintenance on 18 July 2014. The affidavit in support of the application made no mention of receiving either compensation monies or indeed monies by way of loan or gift from friends or associates. The wife was not able to explain why the affidavit did not refer to the money that she received.
The motor vehicle purchased by the wife was sold for $1,500 and does not appear in the wife’s Financial Statement filed 26 October 2016, nor was it referred to in earlier proceedings.
When the wife arrived in Australia she had $500 in cash. She had sold some gold in order to buy her ticket and the husband gave her US$400 which she was required to repay to him.
The wife had long expressed a desire to leave the Middle East and take up residence in Australia. She was concerned that when they went back to the Middle East in 2012, she only had a short time left on her visa and that she needed to be in Australia in order to extend it and to seek permanent residency.
She alleges that when she looked for her passport it was not to be found. She considers that the husband took her passport and hid it under the house and in the basement.
Ultimately, the wife left the Middle East and returned to Australia in 2012.
She denies that prior to her departure she removed $27,817 by way of cash money from the home.
During the relationship the wife did not work. She conceded that the husband was sending money to her in the Middle East via electronic transfer. The wife was challenged as to her assertion that the husband was physically abusive towards her and that he maintained a strong financial control over the family finances.
The wife admitted that in 2005 the parties did open a joint bank account and that she had access to the account by reference to a pin number freely given by the husband. While she acknowledged that she was able to access the account, she would not disobey her husband’s direction and access the account without his permission.
The wife was shown a CBA Streamline account statement for the period 1 April 2008 to 30 June 2008. It discloses two withdrawals on 20 June 2008 of $264.19 from X Town, Country H.
The wife conceded that she probably caused the withdrawals from the joint account.
The wife was challenged on her allegations of family violence. Specifically and shortly after marriage, the husband would hit her on the back of the head and on her stomach with sufficient force that she would lose her breath. The wife had a large family in the Middle East with 13 siblings. The husband attempted to restrict the opportunity of the wife to remain in contact with her family.
When she did see them, the wife admitted that she did not at first tell them of the alleged violence perpetrated by the husband, nor did she seek any assistance from them.
The husband and his family had a traditional view of marital relationships in that the husband was the patriarch of the family and he could not be contradicted.
In her trial affidavit at paragraph 137 the wife refers to an alleged assault on 21 April 2008 which required the attendance of an ambulance.
She visited the local police station and made a statement of the incident but declined to press charges.
At the police station she was advised that an extension of her visa had been granted for five years and sent to her home. She did not have this document and she holds the suspicion that the husband withheld it.
In July 2008 the family returned to the Middle East and lived with the husband’s brother. The family returned to Australia in 2011. It was put to the wife that the family only intended to return for a holiday and not to reside permanently in Australia. The wife did not agree and her response was to highlight that she was seeking a permanent residence status.
Upon her return to Australia, the wife placed a caveat over the former matrimonial home.
The wife’s attitude in respect of the child is difficult to understand given that there was no guarantee the husband would either return with the child or send her back independently with the wife. The wife also knew that the child’s passport needed to be extended. The husband sent the passport to her and having attended to the necessary amendment, it was forwarded to the husband in the Middle East.
She alleges that the husband would not tell her where her daughter was and she paid $1,000 to obtain information as to the child’s location and a contact telephone number. She was able to make contact with the child in October 2012.
The husband advised her that the child was in a facility that she believed to be an institution, but could have been a school.
The husband and the child return to Australia on 26 December 2013 and the wife agreed that the husband arranged for the child to spend time with her.
She also agreed that until 6 January 2014 the husband facilitated the child spending time with the wife almost on a daily basis.
On 6 January 2014 the parties argued and then had a physical altercation in relation to a photo album which both parties wanted to retain.
The police were called but no charges were laid against either party.
The more disturbing aspect of the altercation was that the child observed the fight and the wife reports that she said the following:-
Get out. I don’t like you and you want to send my dad to jail. I wish another woman had carried me for nine months in her belly.
Following the incident on 6 January 2014, the wife was the subject of an Apprehended Violence Order (“AVO”) and whilst it did not prevent her from spending time with the child, she was not prepared to do so in the presence of the husband.
She has not seen the child since late 2014, but has spoken to her by telephone from time to time.
The wife was challenged as to why she did not return to the Middle East to be with her daughter. Her response was that Australia was a better place for the child to live than the Middle East and whilst she accepted that the child clearly had a good relationship with extended family both in respect of the husband and the wife, she considered that the child’s primary relationship was with her.
The wife’s evidence was distressing as she recounted the occasions when the child was violent towards her. Even at the contact centre, the child would not let the wife get close to her and would try and run away. The child used offensive language directed at the wife.
The child had adopted a mantra of wanting to be with her father and his family in the Middle East.
Under cross examination by counsel for the ICL, the wife repeated her concerns that the husband was a physical risk to the child. The last time that she saw the husband hit the child was in 2010.
Whilst the wife had undertaken a parenting course, it was apparent that little had been done by her to gain an understanding of how to reduce the conflict between the parties. The wife agreed that the child’s needs were complex and whilst she did not doubt the child’s desire to return to the Middle East, she did not consider that her daughter had any real insight into her best interests in doing so.
The wife restated her position that if the child was permitted to return to the Middle East with the husband, she did not consider that he would honour his promise to return the child to Australia for two weeks a year.
Notwithstanding the lack of response from the child, the wife continued to telephone the child. More often than not the phone calls went unanswered.
The wife agreed that on 25 July 2014 the child threatened the wife with a knife whilst she was having supervised time. The child referred to the wife as “dumb” and kicked the wife. The wife’s evidence was given in a forthright fashion and I generally considered her to be a truthful witness. I did not consider that she presents as a risk to the child, but she was not able to speculate on how the relationship between she and the child had reached such a dysfunctional level.

The wife remains hopeful that at some point the child would recognise the benefits of resuming a relationship with her mother.

Ms G

Ms G is a friend of the wife and has known her since 2005. She relies on her affidavit filed 3 February 2014.
Ms G met the wife in English classes and often visited her at her home.
She confirmed that she had provided money to the wife from time to time and whilst she did not ask for it to be repaid, the wife gave her $10,000.
She was not challenged in respect of her observations of injuries caused to the wife and formed the view that she was frightened of the husband. She was with the wife in the Middle East three days prior to her departure in September 2012. She prompted the wife to leave the child in the Middle East and return to Australia in order to secure her visa, otherwise the husband could have returned with the child and the wife left stranded not able to enter Australia.

Mr W

Mr W met the wife on 14 February 2015. In October 2015 they commenced living together and they are now married. He has assisted the wife financially and strongly supports her efforts to restart a relationship with the child.
He would often listen to the wife’s telephone conversations with the child and he noted that the child calls the wife a “cow” and says that she hates her.

The husband

The husband relies upon his trial affidavit filed 1 November 2016.
He currently is in receipt of a disability pension and at the time that he met the wife he was in receipt of unemployment benefits.
When the child was born he was concerned at the wife’s inability to form a strong attachment to the child and accordingly he took over the primary care.
In January 2007 when the child was about six weeks old, the husband observed the wife bathing her and heard her say:-
Oh God help me, my daughter, what is happening.
At that time, the wife allegedly told the husband that from now on he should bathe the child as she did not trust herself.
He alleges that the wife was aggressive towards the child and he alleges that he often saw her hit the child.
He spoke of the efforts that both he and members of his family had made in the Middle East to try and bring the wife and the child together. The child loved the paternal grandmother and paternal aunt more than the wife.
The husband strongly asserted that he devotes all of his time to the child and ensures that she visited nieces, nephews and cousins.
The husband has not deviated from his intention to take the child back to the Middle East. When asked to explain why the child should be permitted to relocate, his response is that it is her wish.
The husband gave cogent evidence as to the day to day arrangements for the child and it is clear that in the husband’s care she leads a full life.
The husband agreed with the contention that the child spends a lot of time with the husband’s family and in particular his adult children. They live some distance away. His daughter lives in Suburb Y.
The husband relies heavily upon the assistance of his adult children to look after the child in circumstances where he is not able to do so.
He was questioned as to the explanation for the child missing a significant number of days at school in 2015. The husband agreed that the child had missed a total of 18 days but this occurred because both he and the child were sick and he had undertaken an operation which meant that he couldn’t take the child to school and his adult children did not have time to assist.
He was clear that he manages to take the child to her medical appointments and has attended promptly to all requirements for the child to spend time with the family consultant or the psychologist.
The husband accepted that the child is rude to the wife over the phone and accepted that the child remained reluctant to spend time with her.
Of recent date the husband has permitted the child to take the phone into another room so that she can say what she likes to her mother. The husbands evidence is not intended to suggest that the child sought privacy in order to speculates that the child engages in pleasant conversation but rather, the child continues to berate and belittle the wife without interference from the husband.
The husband could offer no explanation as to why he was not able to impose his will on the child and ensure that she was civil and appropriately respectful when dealing with her mother.
The wife considers that the husband is in poor health and that this is a factor both in terms of his ability to care for the child in Australia but also should she be permitted to relocate to the Middle East. If the husband sells the former matrimonial home there would be nothing keeping him in Australia.
The wife applied for a carer’s pension, but the husband’s initial position is that it was a scam promoted by the wife’s friends. The husband could not remember what the disability was, but when pressed remembered that it was severe arthritis affecting his knee and shoulder. The husband now says that his arthritis has largely resolved and he no longer has a disability and certainly not to the extent that it might interfere with his ability to parent.
I did not accept the husband’s evidence that the wife had engaged in a scam. If it was a scam then the husband was complicit. It is more likely than not that the husband did suffer and continues to have pain and restriction associate with arthritis.
In June 2008 the wife and child travelled to the Middle East for what was intended to be an extended holiday. The husband joined them in August 2008. He conceded that in his absence the wife cared for the child.
The family remained in the Middle East until December 2010 when again the husband left the child in the care of the wife and returned to Australia. He returned to the Middle East in April 2011 after resolving a dispute with Centrelink in Australia. The child remained in the care of the wife during this extended period.
The family returned to Australia on 20 December 2011 and told Centrelink that the family now wanted to remain permanently in Australia. His representation to the Centrelink office was the basis of his application for Centrelink benefits to recommence.
The family returned to the Middle East on 20 April 2012 but the wife wishes to remain in Australia and was not happy to return to the Middle East. The husband denies any suggestion that the wife was reluctant to return to the Middle East. The husband did not agree that there was any basis for the wife to return to Australia without warning or advice. He did not consider that her residence status was as urgent as asserted by her.
The husband followed the wife back to Australia in December 2012 and they resumed cohabitation. The husband accepted that he had divorced the wife in the Middle East in November 2012 and had made a complaint to the police that the wife had stolen approximately US$27,000. He alleges that the money was in a small box in the husband’s brothers’ house. He got the money from a compensation payment when he was an employee of Company Q and it is his evidence that he disclosed the existence of the compensation monies to the wife. It was put to the husband than when he applied for Centrelink benefits in January 2012 he did not tell Centrelink that he had any money in the Middle East.
He agreed that when he received his compensation monies in 1989 he removed $90,000 from Australia and kept it in cash with his sister and then with his brother in the Middle East. When pressed, he conceded that he had not told Centrelink of the money in the Middle East for fear that disclosure may result in him being ineligible for Centrelink benefits.
It is difficult to determine the status of any criminal proceedings that remain outstanding in the Middle East in respect to the wife. The husband’s evidence was unsatisfactory and there exists the distinct possibility that should the wife return to the Middle East she may well face prosecution.
The relationship between the husband and members of his family is strong. He refers to his sister as the child’s “second wife”. When in the Middle East, I find that the child is cared for extensively by members of the husband’s family and leading up to the child’s return to Australia I accept his evidence that he enrolled the child in an institution known as T School. His description of the school was that it was similar to a boarding school. The child would live at the school and whilst he agreed that it had been referred to as an “orphanage” in reality it was a boarding school. The husband asserts that the school has high academic ideals and is considered prestigious in the area. His evidence is that it is a privilege for a child to attend that school.
The wife is concerned that the child was not boarding but rather, was being entirely cared for in an orphanage environment.
Her concerns were heightened by the content of exhibit “4” which is a letter from the school sent in June 2015 and I consider that its contents should be repeated in full:-
To whom it may concern,
[T School] is an association for children in need, we give children a healthy start and the opportunity to learn and protection from harm. By transforming children’s lives now, we change the course of their future and ours.
[The child] was registered at our association in 2012-2013 at the age of 6 years. She was admitted by her father who claimed that her mother left them and no one was capable of raising her since her grandmother was old and sick. [The child] use to visit her father twice a month, her aunty use to take care of her during her stays and her father was partially absent due to his travels.
As per the psychologist at the centre, [the child] tended to get easily attached to any mother figure and needed a lot of affection, she needed a lot of attention and care. In addition, she was very dependent. [The child] spent few weeks crying and declared that she didn’t want to stay at the centre. [The child] also presented an oral regression and had difficulties expressing her feelings especially in Arabic. It took her a while to be integrated upon her age group.
After few months of her admission, we got a call from her mother who declared that her daughter came to [the Middle East] against her will and it was extremely hard for her to get the number of our association., the mother was desperately in need to talk to her daughter. [The child] refused several times to talk to her mother and declared “if I talk to my mother, my father will hit me!”. We were then aware that her rejection to her mother was based on fear and threats.
On her 7^th birthday, the mother sent money to the association and asked us to celebrate her birthday. [The child] was extremely happy. Her father knew about it, decided to take [the child] and she was dismissed even before the end of school claiming that they needed to go back urgently to Australia.
The husband did not agree that the letter suggested the enrolment was underpinned by an allegation that the child’s mother had run away and had abandoned the child.
He did not agree that the content of the letter accurately assessed the paternal grandmother’s health. He also disputes the frequency with which he saw the child and it is his evidence that he spent time with the child every weekend.
He does accept that upon first enrolment, the child was upset for a couple of weeks. By the time of her 7^th birthday the wife had sent the money to the school and had asked them to celebrate the child’s birthday.
Whilst the school charged a tuition fee of about $700 per quarter, the husband did not have to pay fees. It appears that the fees were waived by the school on the basis of the history as presented by the husband of the child having been abandoned by the wife.
The husband was convinced that the child’s enrolment at the school was clearly in her best interests. The husband has no ability to control or direct the school and when pressed he was not able to explain the benefits to the child of boarding away from home when he clearly promoted his strong attachment to the child and his ability to care for her day to day needs.
The suspicion is that the husband intended to create an impression in the child’s mind that she had been abandoned which had left her father in a difficult position with the short-term solution being the child’s attendance at a boarding school or an orphanage. The implication is that if the child was distressed then the fault lay with the wife and not with the husband.
The child has attended three schools in the Middle East and two schools in Australia.
The child is now attending Suburb F Primary School.
When the husband returned permanently to Australia he did not bring the child but rather left her in the Middle East. I consider that the husband took no steps to help the child understand what was happening, nor indeed to place into perspective that the wife may not have abandoned the child but rather, had returned to Australia in order to ensure that if the family were to return from the Middle East then she would have residence status.
The correspondence from the school advises that the child had attended upon the school psychologist for therapy. The husband did not know of the nature of the counselling or therapy undertaken, but did not seem concerned at the reference in the letter to the child getting “easily attached to any mother figure and needing a lot of affection, she needed a lot of attention and care.” I find that the husband intended to keep the whereabouts of the child a secret from the wife and did not reveal the name of the school or the schools contact details.
The husband was asked to reflect upon the times that the child spent time with the wife upon her return from the Middle East. He agreed that there were about eight or nine occasions between 26 December 2012 and 26 April 2014. The visits were all between one to two and a half hours in duration. At no time did the husband leave the child alone with the wife, but at no time did the child want to remain alone with her.
His observation was that the visits did not go well and whilst he never refused the child seeing her mother, the child was resistive to such contact.
The visit on 2 January 2014 did however go well and the husband agreed that the child was happy to see the wife and was prepared to receive a gift of some chocolate. This is contrasted to a visit on 6 January 2014 which degenerated into an argument and a physical altercation between the parties.
The husband was asked to consider the contents of paragraph 213 of his trial affidavit which alleged that since the child’s return to Australia the wife had made no effort to see the child and had not either messaged or attempted to communicate with her or send a gift. It says:-
It has been almost 2 years now that [the wife] has not had contact with [the child]. I have tried to facilitate contact however there has been no effort by [the wife].
The husband agreed that what is in his affidavit was not true. He conceded that the wife had made considerable effort to see the child and there were orders made for the child to spend time with the wife at a children’s contact service. The husband acknowledged the order but attempted to place what was clearly a breach of the order by referring to the child’s reluctance to remain with the wife. The notes of the observed interaction showed that the child was very distressed and accused the wife of trying to kill the husband with knives on two occasions. The husband agreed that the child’s observations and representations were incorrect. He had no insight as to how it might be that the child would be prepared to repeat a false allegation.
The husband was told that the contact had not gone well and that the child appeared angry with the wife. The child was talking to the wife about her boyfriend. That information could only have come from the husband or members of his family.
The husband acknowledged that the supervisor had suggested he should undertake a parenting course, but he refused on the basis that he was not to be treated “like a baby”. He noted that he has four children and seven grandchildren and did not think he needed the assistance of a parenting course.
He agreed that a worker at the children’s contact service told him that the child had been hitting and kicking at staff. The child had also called the wife “a slut” and that she should “eat shit”. The husband’s response was that he was angry and upset with the child, but could not understand or explain where she may have heard such language. It was put to him that it may be a reflection of the manner in which the husband and his family refer to the wife in the presence of the child.
After the children’s contact service refused to facilitate further supervised time, arrangements were made for the wife to spend time with the child at the home of the husband’s daughter. It was during the last of the three visits that the child accessed a knife and threatened the wife. The child was about eight years of age at the time of the incident. There was no basis for the child to be concerned and there is nothing to suggest that the wife behaved inappropriately or aggressively. I accept the evidence of the wife that her contact with her daughter displays open love and affection.
In the absence of an explanation for the child to threaten her mother with a weapon, it must be the case that the child is very disturbed. The husband agreed that it was not normal and he took her to a general practitioner and then a psychologist following the event. The evidence suggests that the child may well have had to deal with a further impediment namely, that her English was poor and therefore limited her ability to communicate with others.
The husband conceded that he was no longer worried about any alleged risk posed by the wife to the child. He considered that the wife had changed. He had previously considered that the wife was only pursuing the proceedings for money, but reluctantly conceded that she now appears to be more affectionate and genuine in her intention to pursue a relationship with the child.
The husband’s evidence was nonsensical and I do not accept his assessment of the wife’s motivation.
In order to demonstrate his support for the child having a relationship with her mother, he gave as an example the comparison of how he conducts himself when the wife and the child speak on the telephone. Previously, when the child made a call he would be present in order to keep the child on track. Now, the child will not speak to the wife in his presence because she knows that he will be angry with her when she is offensive and disrespectful towards her mother.
The husband’s evidence demonstrated a distinct lack of understanding as to the importance to this child of having a relationship with her mother. Moreover, it suggests that he has little or no parental control and is not able to give or properly direct the child to behave appropriately.
The husband agreed that the child should not speak poorly of her mother and was keen to appear receptive to promoting and repairing the relationship. If permitted to relocate the child’s residence to the Middle East, the husband proposed that he would ensure that the child returned to Australia for at least one month in the June and July school holidays each year.
The husband was asked to consider how he would ensure the child would be prepared to spend a month with the wife when he has not been able to promote even five minutes. The husband was not able to provide any cogent answer other than because the child would achieve her long sought after outcome which is to return to the Middle East, there would be no reason for her to continue her opposition to a relationship with her mother.
The husband was steadfast in his refusal to consider undertaking a parenting or communication course. His attitude was that he had looked after his children and his grandchildren and now the child and he would not be treated “like a baby”.

If the Court’s decision was for the child to stay in Australia, the husband believes that the child would be shocked and will inevitably blame the wife. The husband did not agree that he had allowed the child an extraordinary amount of power in respect of the decision to return to the Middle East.
He is prepared to remain with the child wherever that may be and would no longer leave her alone for long periods of time as had been the practice in the past when he returned to the Middle East/Australia for extended periods.
The husband receives significant assistance from his adult children who provide meals for them on about four or five times per week.
In the Middle East, the husband and the child would live in the home of the paternal grandmother and would have regular contact with his sister who lives in Z Town approximately 15 kilometres from the grandmother’s farm.
The child currently enjoys her school, but she still refers to her school as being in the Middle East. The husband takes the child for tutoring and attends the child’s school every Wednesday to help out in the garden.
The husband’s sister comes to Australia from time to time, but it would be difficult for her to leave the Middle East. She has her own family who rely upon her.
When asked to consider how the child would react to not spending as much time with the husband’s children and their extended family, he thought that she would adjust.
He was not prepared to concede that the child’s most important relationships were now in Australia and that what remains in the Middle East is more likely to be fantasy than reality.
The husband was an unimpressive witness. The orders that he now seeks are untenable. The point made by counsel for the ICL was telling. There is no explanation by the husband as to how he could comply with an order for the child to return to Australia for at least one month in each year if he is not able to deter his daughter from being offensive and abusive towards her mother.
The husband gave no evidence which suggests that he is able to control his daughter’s behaviour and I am not satisfied that he has demonstrated any interest in promoting the child’s relationship with the wife. There is a considerable risk that the husband will not find reason to return the child to Australia to see her mother.

Dr C

Dr C (“the psychologist”) is a well-credentialed and highly regarded psychologist specialising in family therapy, counselling and psychological intervention in respect of families and children in particular. She has a focus on attachment and emotional issues of children.
She prepared a report dated 22 November 2016 which is exhibit “1” in the proceedings. There were 10 sessions with the child and other sessions with the child and her parents. An opportunity was given for feedback.
There was only one session that involved interaction between the child and her mother.
The psychologist observed that the child was very angry with her and both the wife and the child were very distressed through the entire session.
She reported the child’s views of feeling abandoned by her mother and whilst she was not physically aggressive as she had previously been, there was no lessening of emotion.
There was however an obvious level of affection between the husband and the child and it was to a point that was not often observed.
The opinion of the psychologist was that the child sees herself as a key player in achieving the goal of the child and the husband being able to relocate to the Middle East.
The child was clearly of the view that it was her mother who keeps her here and the observations of the psychologist was that she was unequivocal in her view that she was pivotal to the intended outcome.
The psychologist highlighted the importance to separate “attribution” from “outcome”. It was her view that the child had a clear fantasy of what life was like and would be like living in the Middle East that she will be very upset and distressed if she was not permitted to go. She did concede that it might help the ongoing therapy in that it will remove the uncertainty of the outcome.
She agreed with the husband’s assessment that the child would be bitterly disappointed if she was not able to leave Australia, but considered that if the child was not permitted to leave, the husband will need to work through the child’s anger and disappointment.
Whilst the child may well be determined in her approach, the psychologist considered that she did not have the maturity to understand her attitude or her views of the effect of returning to the Middle East. The relationship that she has with her paternal grandmother and aunt is only a small part of what has happened and should not be the decisive issue as to whether the child should live in another country.
The child has been through extraordinary life changing experiences and given the psychologist’s assessment that the child as being emotionally immature, the impact of the family dynamics, the separation of the parties and the changing locations of residence and culture have had a particular impact on this child.
Wherever the child lives it will be essential for her to have ongoing therapy and counselling.
The psychologist considered that she had built up a rapport with the child and would be prepared to continue working with her, although she considers that the child will be angry if the psychologist was ultimately not an ally.
Her opinion is that the child needs continuity for the medium and long-term wellbeing of the child. Whilst going to the Middle East may well satisfy the short-term goal of the child, if things do not work out and she returns to Australia, this would not be in her best interests. The psychologist’s evidence was clear; the child does not need any more dramatic changes in her life.
She highlighted that the child has a significant family in Australia and was not confident the child’s attitude towards her mother would change and if allowed to live in the Middle East, the psychologist did not accept that the child would now be happy to spend time with the wife.
The psychologist considered that the child has effectively been abandoned by both parties at critical times in her young life. The disconnection between the wife and the child was total and it was difficult to see how the relationship would develop in Australia, but equally there was no certainty that a move to the Middle East would achieve that outcome either.
Notwithstanding the child’s age, the psychologist considered that she was regressed in her emotional development. She needs to be a “ten year old again”. She is vulnerable and any ongoing therapy must be benchmarked. Unless there is some improvement, the parties may need to concede that there is nothing more that can be achieved.
The child is a reflection of the contribution by each of the parties. The psychologist considers that children look for black and white answers rather than a more nuanced approach that comes with maturity.
The child sees the problem and her present predicament as relating only to her mother.
If the child is to remain in Australia it is possible that her fantasy surrounding the Middle East will become more exaggerated. She will be clearly disappointed, but that is one of a number of counter-veiling issues. The paternal grandmother is in poor health and there is uncertainty as to the effect on the child if she were to soon die. She may well blame her mother.
The prognosis for a relationship between the wife and the child is poor if she lives in the Middle East.
The psychologist was realistic in her assessment that it was unlikely the child would have an epiphany. Whilst it was the husband’s observations that the child appears generally unhappy, the psychologist did not observe the child as being generally unhappy, but was angry at her wish to relocate to the Middle East thwarted by her mother.
Overall she considered the relationship between the child and the husband to be positive and nurturing.

Family Consultant

By order made 22 April 2014, the family consultant prepared a report dated 7 October 2014.
The family consultant has had nothing further to do with the family, but in particular the child since September 2014.
The family consultant has not read the current trial affidavits and is not able to make any comment in respect of the current proposals of the parties.
The observations of the family consultant are of some assistance.
In 2014, it was his assessment that the husband appeared to lack any authority with the child.
It was his assessment that the child did have a relationship with the wife in 2014 but that it was problematic, troubled and dysfunctional. He did not consider that there was much the wife could do because the attitude of the child was likely to have been reinforced either directly or indirectly by the husband and members of his family.
In 2014, the family consultant considered there would be a benefit to the child of a relationship with her mother if it could be fostered.
He was asked to consider the concept of allowing the child to go back to the Middle East and the effect that this would have on her opposition to a relationship with her mother. Whilst he did not have the advantage of current assessment and observation, on the basis of the child’s presentation in late 2014, the family consultant considered that such a proposal was non-credible or logical.
The evidence of the family consultant was of assistance, in particular because it provides the Court with the ability to observe the presentation of the parties and the child in 2014 when observed for the purposes of the report and the observations of Dr C in late 2015 and to the end of 2016.

LEGAL PRINCIPLES RELEVANT TO PARENTING ORDERS

Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) requires that I have the best interests of the child as the paramount consideration in making parenting orders. The best interests test is met by the application of the objects of s 60B(1) of the Act.
I am cognisant of the primary considerations and the additional considerations with respect to the matters as set out in s 60CC(2) and (3) of the Act.
I am mindful of the direction contained in s 60CC(2A) of the Act, but I do not consider that either party seeks that I bring to account any aspect of aggressive or coercive conduct on behalf of the other. There may well be an issue as to whether the child may be exposed to an emotional risk in the sense that the husband appears to allow the child to act upon her desire to relocate to the Middle East.
As discussed, the issues that remain in dispute between the parties are narrow.
The wife agrees that the husband should have sole parental responsibility. That should in some way be tempered by the husband being obliged to consult with the wife as to significant issues affecting the child’s education and health, but ultimately it is a matter for his final determination.
The wife concedes that she will only be able to spend time with her daughter if the child’s attitude alters and accordingly, she does not seek any order for time.
Communication between the wife and the child appears also problematic. The telephone calls are generally disrespectful and appear to provide an opportunity for the child to further press her case for relocation.
The focus therefore is upon whether in all the circumstances it would be in this child’s best interests to be permitted to relocate from Australia to the Middle East with her father.
Accordingly, I propose to adopt the following approach given that I am not now obliged to consider the provisions of s 65DAA of the Act:-
(1)Give consideration to the proposals put forward by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) and underlying principles of s 60B(2);
(3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interest;
(4)Have regard to the primary considerations under s 60CC(2) namely, the benefit of the child having a meaningful relationship with both the child’s parents and the need to protect the child or children from physical or psychological harm;
(5)Have regard to additional considerations under s 60CC(3);
(6)The evidence adduced by each of the parties in respect of particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters then this must be the subject of delineation and comment.

PRINCIPLES APPLICABLE TO RELOCATION CASES

In AMS v AIF (1999) 199 CLR 160 Hayne J highlighted that the focus of the Court must be on how a child or children would be affected either to their detriment or their benefit by the separate proposals of the parties:-
[216] An important, probably essential, step in the inquiry into who shall have custody of, and access to, the child is to identify where the custodial parent intends to live, for that will determine where the child lives and affect what contact the non-custodial parent can be expected to maintain with the child. But that is not to say that it is for the court to decide where the custodial parent may live: that decision is to be made by the parent.
…
[218] To translate the question into this form – has the wife shown a good, or good enough, reason for wanting to move – focuses attention upon the reason and motives of the wife. But that is not the proper focus of inquiry. The proper focus is whether it is better for the child – to be in the custody of the father ... or to be in the custody of their wife ... That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the wife’s custody ...
The Full Court in Starr & Duggan [2009] FamCAFC 115 gave clear direction as to the co-existence principle that the best interests of the child is the paramount consideration and the legislative framework will of necessity involve some overlap of a consideration of similar factors pursuant to s 60CC. The approach is not meant to be rigid such that:-
[38] ... it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
·first make findings concerning the relevant s 60CC factors;
·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·then consider whether such arrangements are reasonably practicable by addressing the matters referred to s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
The relocating party is not required to justify why they seek to relocate. It is how well the best interests of the child will be served against the setting of each of the parties’ respective proposals, in this case the husband’s application that the child relocate her residence to the Middle East.
Whilst there is no specific principle of procedure that is required to be brought to account when relocation is either overseas or involves a substantial distance between the relocating parent, the child or children and the remaining parent, nonetheless a tyranny of distance is likely to reduce the options available to the parties.
In the decision of Zahawi & Rayne [2016] FamCAFC 90 the Full Court considered a number of authorities both international and local and summarised the position as follows:-
[47] All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow & Callinan JJ said in U v U:
...The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
[48] “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
(Footnotes omitted)

PARENTING CONSIDERATIONS

Meaningful relationship

The child has a close and affection relationship with her father, but currently does not have a positive relationship with her mother. The family consultant considered that there was a relationship, but that it was dysfunctional and marked by anger and distress.
The evidence supports the contention of the wife that she had a close relationship with the child whilst married to the husband. I reject the husband’s evidence that from the early time following the birth of the child that the wife was not emotionally connected or attached to the child. The wife’s evidence, her presentation and the observations of the family consultant and the psychologist supports that finding.
It is not suggested that the wife does not wish to seek a relationship with her daughter, but she recognises that it has been so damaged that it may not be possible to reconcile their differences.
The catalyst for the breakdown of the relationship appears to coincide with the wife’s secret departure from the Middle East in 2012. Whilst the evidence supports the wife’s contention that unless she returned to Australia she may not be able to secure her permanent residence status as distinct from the husband and the child who held Australian Citizenship, to a large degree the considerations that affect the child are not so much the catalyst for her oppositional behaviour, but rather what is in her best interests consequent upon a consideration of the separate proposals of the parties.
There is no evidence which supports a finding that it is not in the best interests of this child to have a meaningful relationship with both of her parents, but in particular her mother. The orders sought by the husband to relocate with the child to the Middle East must be considered in that context.
The husband adopts a simplistic approach which is based upon the proposition that if allowed to relocate, then the source, contention, anger and upset resident in the child will dissipate and there will now be no reason why she would not be able to re-establish a relationship with her mother. In summary, if the child perceives that she has achieved her goal, then she can be magnanimous towards her mother. Both the family consultant and the psychologist considered that this was an overly simplistic approach. It imports a level of maturity to the child that is not justified.
The psychologist recorded the husband’s position in the following terms:-
Notwithstanding the intense hostility [the child] demonstrates towards her mother, [the husband] is optimistic that should he and [the child] be permitted to relocate to [the Middle East], that could affect a repair in the wife/daughter relationship. He stated that, in that event, he envisages bringing [the child] to Australia and very possibly she would see her mother. This discussion occurred in front of [the child] who did not make any comment.

The husband’s proposal was amended during the course of the proceedings and he increased the time that he would return with the child to Australia from two weeks to at least four weeks per year, with such time to be taken during the northern hemisphere mid-year school holidays.
The difficulty with the husband’s proposal is that there was no evidence to support the foundation of the proposal namely; that if allowed to relocate that would result in the child and the wife being reconciled.
The evidence suggests that whilst there is clearly not a meaningful relationship between the child and her mother whilst the child resides in Australia, there is nothing to support the proposition that if permitted to relocate to the Middle East, their relationship would be restored. Neither the family consultant not the psychologist who had the advantage of observing the parties and the child in family therapy spanning a year, support the husband’s proposal.

Views of the child

The child is 10 years of age. Her approach to relocation has been consistent and unrelenting. She remains opposed and steadfastly so to remaining in Australia and is entirely committed to the view that she should live in the Middle East with her father, the paternal grandmother, sister and other members of his extended family.
It is reasonable to distil the evidence to the proposition that the child’s opposition to a relationship with her mother is designed to achieve her goal of relocation. I must have regard to the child’s views on relocation informed by her persistence of approach and single-minded determination. The issue as highlighted by the family consultant and the psychologist is that the child’s approach, whilst clearly determined, does not reflect well on her maturity.
The psychologist was of the view that this child should be allowed to behave like a 10 year old, rather than to be at the centre of an emotional maelstrom.
The decision in respect of relocation should not be for the child to make in circumstances where the evidence does not support that the child’s views are rationally informed.
As was commented on by the family consultant and the psychologist, there is a high level of fantasy in the child’s romantic notion of life in the Middle East.
I accept that the evidence supports a close relationship between the child, the paternal grandmother, paternal aunt and other members of the husband’s family. The paternal grandmother is however elderly and in failing health. The paternal aunt does not live in the area where it is proposed the husband and the child will reside and whilst previously residing in the Middle East, the evidence does not support a finding that the husband was entirely responsible for the child’s care.
The evidence surrounding the child’s enrolment in a boarding school (or orphanage) is unsatisfactory. Whilst the child may have a rose coloured recollection of life in the boarding school, the evidence contained in the report from the school suggests a child that is distressed and who has been abandoned by her parents.
The child’s current view is distorted by a perception that her mother has abandoned her, whereas her father has been her protector.
It is also likely that she has been influenced to have a negative view of the wife and the wife’s current husband by the husband and his extended family in Australia.
Of more significant concern is the potential adverse impact upon the child if a return to the Middle East does not fulfil her clear expectations.
To a large degree the views of the child have been given significant weight by the parties. It is not to the husband’s credit that he has been unable to promote or foster a proper relationship between the child and the wife. For her part, the wife has relinquished any attempt to pursue orders that the child spend time with her on the basis that she realises it is unlikely to occur.
The evidence of the last supervised time between the wife and the child is distressing. Given the evidence in this matter, it cannot be easily explained why the child would threaten the wife with a knife rather than seek a relationship with her.
The evidence was not complimentary of the husband’s efforts to discipline the child or support to re-establish a beneficial relationship.

Nature of the child’s relationship with others

The child has a close relationship with her father. Both the family consultant and the psychologist remarked upon the closeness of the relationship and the extent of the attachment. The child also has a beneficial relationship with the husband’s extended family. They are integral to the current care arrangements for the child. The husband acknowledges that the child stays with his adult children from time to time, particular when health considerations prevent him from caring for the child.
The husband and the child eat with his children on four to five nights each week and the evidence supports a finding that whilst not necessarily recognised by the child, the relationship that she has with her father’s family in Australia is important.
The child has a relationship with the husband’s remaining family in the Middle East. That relationship may be underpinned by fantasy rather than reality.
The psychologist was concerned that if the child was permitted to relocate to the Middle East then she will lose the certainty of the benefit derived from her connection with her family in Australia for the uncertainty of the family relationships in the Middle East.

The extent to which each of the child’s parents are involved in the child’s life

The wife has no involvement in the child’s life. The husband is the primary carer for the child. He is appropriately engaged with the child both at home and also at her current school.
The wife does not pay child support, nor does she provide any significant financial assistance to the husband. That position is likely to remain for the foreseeable future.
The wife’s concern is that if the child is able to relocate to the Middle East then she will be forever lost to her. It is unlikely that any order made could be enforced in the Middle East.
The psychologist considers that there should be at least some further attempt to reconcile the wife and the child (limited to four or five further therapeutic sessions). In addition, it is recommended that the child undergo psychological counselling irrespective of the extent to which she sees her mother. There is no evidence of the availability of appropriate psychological counselling services in the Middle East.
The husband’s proposal that the child would return to Australia for at least four weeks a year is likely to be unenforceable and there is no evidence to suggest how the husband would support the cost of travel to and from Australia. Whilst it is the intention of the husband to sell the former matrimonial home, he will still need to reside in Australia and provide for the ongoing and day to day needs of the child.
The husband’s health needs to be considered and there is no suggestion that he has any other source of income other than a Centrelink benefit pension or allowance.

Practical considerations of the parties’ proposals

The wife’s proposal requires little consideration. Providing the child remains in Australia she proposes that there should be some further periods of counselling and after that she hopes that once the proceedings have concluded, her daughter may come to realise the benefit of her relationship with the wife.
The husband’s proposal is simplistic in its construct. If allowed to relocate to the Middle East then he has some confidence that the child will thereafter be willing to return to Australia annually to see the wife.
There are difficulties with the financial arrangements with respect to the costs of travel, but of greater concern is the risk highlighted by the family consultant and the psychologist, that if a return to the Middle East does not fulfil the child’s fantasy then she will be further damaged by yet again another destabilising move of home, culture and country.

CONCLUSION

The psychologist observed some “common themes” in the child’s play:-
(a)[The child] especially enjoyed playing with a dolls house. Her play was less mature than would be expected for a child of her age. The themes of abandonment, balls, dolls being left in her play;
(b)Repeated disclosures that her mother hit her, did not look after her properly and spent all of her time putting her own makeup on, stealing money her father gave her and threatening to hit her if she told anyone;
(c)If she loved me she would live with us and take care of me. A good mother would be kind and never smack;
(d)Anger at mother for changing her religion and remarrying. Dad says it’s better if he doesn’t remarry;
(e)Remembers going to a [religious] school;
(f)Mum and Dad happy in [the Middle East] and memories of being together with all the family in [the Middle East];
(g)Only love father, grandmother and aunt. My grandmother loves me the most. If I see my mother we can’t go to [the Middle East]. If I stay with dad we can go. I am always sticking to dad. We need to fight a battle. I am trying so hard to make us win. When we win, my grandmother is going to give us a big party. All we want is to win;
(h)Displays of very affectionate behaviour with the father in the waiting room. Sitting on his lap.
I accept the conclusions of the psychologist that the prognosis for the child’s relationship with the wife is poor whether she remains in Australia or returns to the Middle East.
The manner in which the child is engaged in the “battle” with the wife promotes a finding that if leave was given for the child to relocate to the Middle East, it would not be based on the evidence of what is in her best interests.
In the absence of evidence that establishes the child have given careful and mature consideration to a move to the Middle East, I am not able to place significant weight on her views.
The balance of the evidence strongly supports the child remaining in Australia.

PROPERTY SETTLEMENT

Orders sought

The wife seeks the sale of the former matrimonial home and that the net proceeds of sale be divided as to 60 per cent to the wife and 40 per cent to the husband. Each party is to retain all other property in their possession or control including jewellery, monies held in financial institutions, superannuation interest, furniture and items of personalty.
The husband seeks that each party retain all real and personal property without claim by the other. He argues that the circumstances of this case are such that the Court could not be satisfied that it is just and equitable to make an order that alters the legal and equitable interests of the parties in property. Accordingly, reliance is placed upon s 79(2) of the Act which provides that:-
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
The parties met in the Middle East in 2001 and were married in 2004. At the time of marriage the husband owned the former matrimonial home unencumbered. The child was born in 2006. The parties remained in Australia from 2005 to 2008 when the wife and child travelled to the Middle East. The husband arrived later in that year. The husband entered into a tenancy agreement in relation to the former matrimonial home.
The husband returned to Australia in December 2010 with the wife and the child remaining in the Middle East. In 2011 he arranged for rent in respect of the former matrimonial home to be deposited into an account held and/or maintained by his son.
The wife, husband and child returned to Australia in December 2011 and lived with the husband’s relatives. The family returned to the Middle East in April 2012 and in September of that year the wife returned to Australia alone ostensibly to extend her visa to enable continued residence in Australia. This date marks the date of separation.
The husband returned to Australia without the child in December 2012 and lived with the wife at her address for four months. In February 2013 the wife agreed to remove the caveat that she had placed over the former matrimonial home and in April 2013 the husband returned to the Middle East. The wife commenced proceedings on 17 September 2013 and on 26 December 2013 the child returned to Australia but remains in the sole care of the husband.
The parties and the child remain in Australia and given that the husband has been unsuccessful in his application to relocate the child to the Middle East, the husband’s position is that he will now remain in Australia.
The child spends no time with the wife. The husband and the child have now taken up residence in the former matrimonial home.
The wife retains modest part-time employment, but has re-partnered and is now married. The wife’s husband has stable and secure employment as a public servant.
The wife pays no child support. The husband’s only source of income is by way of a Centrelink benefit pension or allowance.
At the commencement of the proceedings the parties prepared a balance sheet which provided assistance in terms of identifying the interests of each of the parties in their separate property.
The parties agree that the former matrimonial home is held in the husband’s name and is valued at $515,000.
The parties agree on the value of a motor vehicle in the husband’s possession in Australia in the sum of $850 and a motor vehicle held by the husband in the Middle East the value of $6,450. The husband holds $2,000 in a Commonwealth Bank account.
The wife argues that the Court should consider adding back into the pool of assets the following:-
(1)Rental income from February 2011 until September 2013         $51,000
(2)Rental income from 26 December 2013 until present                $14,000
(3)Westpac account balance as at the date of separation                   $6,928
(4)Monies advanced by the husband to his sister in the Middle East           $ 40,000
(5)Commsec shares sold by husband  $ 11,190
The superannuation entitlement of the husband with Axa Fund is negligible in the sum of $1,696.

LEGAL PRINCIPLES TO BE APPLIED

Section 79 of the Act provides:-
(1)In property settlement proceedings a Court may make such orders as it considers appropriate:-
(a)In the case of proceedings with respect to the property of the parties to the marriage or either of them altering the interests of the parties to the marriage; or
(b)…
(c)An order for settlement of property in substitution for any interests in the property; and
(d)An order requiring:-
(i)either or both of the parties to the marriage…to make for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the Court determines…
(ii)the Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
The Court is required to consider the provisions of s 79(4) in considering what (if any) order should be made.
“Property” is defined in s 4 of the Act as meaning property to which those parties are, or that party is as the case may be, entitled, whether in possession or reversion.
Prior to the consideration of s 79(2) of the Act by the High Court in Stanford v Stanford (2012) 247 CLR 108, “the preferred approach” is best encapsulated in the approach adopted and endorsed by the Full Court in Hickey & Hickey and Attorney General for the Commonwealth of Australia (2003) FLC 93-143 where the Court supported what has been commonly referred to as a “four step approach”.
It is notable that in Hickey (supra) there was not a close examination of s 79(2) in terms of whether it was just and equitable to make any order. The position in respect of the proceedings before me is different.
The wife applies for an order under s 79 for an adjustment of property under the Act. It is the wife’s contention that it would be just and equitable that the wife would receive a settlement of property. The husband contends that the Court should not make an order because it could not be satisfied that in all the circumstances it was just and equitable to do so.
In Stanford (supra) the majority held:-
[35]It will be recalled that section 79(2) provides that “the Court shall not make an order under this section unless it is satisfied that, in all the circumstances it is just and equitable to make the order”.
Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirement under the two subsections are not to be conflated. In every case in which a property settlement order under section 79 is sought, it is necessary to satisfy the Court that, in all the circumstances, it is just and equitable to make the order.
[36]The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.
Importantly the Court found:-
Whether it is just and equitable to make the order is not to be answered by assuming that the party’s rights to all interest in marital property are or should be different from those that then exist.
It is therefore not a matter of assumption that a party to a marriage has a right to interest in property by reference to matters arising under section 79(4). A party cannot pull themselves up by their own bootstraps by asserting a contribution under s 79(4) and therefore using that position to satisfy the obligation created by s 79(2).
It was further held by the High Court that:-
To conclude that making an order is just and equitable only because and by reference to various matters in section 79(4) without a separate consideration of section 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
Whilst clearly the Court has a significant obligation to consider the justice and equity of making any order that adjusts the property rights of parties, I do not consider that Stanford goes so far as to suggest there can be no regard to the matters that might fall for consideration under s 79(4) of the Act. It is the very nature of the suite of contributions made by parties to a marriage which in and of themselves have the ability to create equitable interests in the property of each of them.
The High Court in Stanford sought to define its likely application to cases in the following manner:-
[42]In many cases where an application is made for property settlement order, the just and equitable requirement is readily satisfied by observing that, as a result of the choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be common use of property by the husband and the wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired, is also brought to an end. Hence it will be just and equitable that the Court make a property settlement order. What order, if any, should be determined by applying section 79(4).

In Bevan & Bevan [2013] FamCAFC 116 the majority of the Full Court said (in relation the previously quoted paragraph in Stanford):-
[70]In our experience the circumstances described in the paragraph above encapsulates the vast majority of cases. Hence the reminder in Stanford of the pivotal role of section 79(2) is unlikely to have any impact in most cases, although it will serve as a reminder to Trial Judges that the precondition to making any order is a finding that it is just and equitable to do so.
In paragraph 73 the Full Court in Bevan (supra) stated that the decision of Stanford (supra) can be reduced to three fundamental propositions:-
(1)A Court needs to consider the existing property interests of the parties and to identify those interests, (by reference to common law and equity);
(2)The direction must be exercised in accordance with legal principles and not in respect of any assumption that the parties interests should be different from those determined by common law equity; and
(3)Section 79(2) cannot be conflated by reference only to matters in section 79(4).
The husband argues that it is not just and equitable to make an order altering the property interests of the parties for the following reasons:-
(1)The wife has no legal or equitable interest in the former matrimonial home which is the main asset in dispute.
(2)The former matrimonial home was acquired by the husband well before the commencement of the relationship between the parties.
(3)The wife has not made any contribution towards its acquisition, maintenance or improvement.
(4)The non-disclosure by the wife of her financial circumstances.
(5)The wife relinquished claim of the husband’s property in divorce proceedings in the Middle East.
(6)The section 75(2) factors favour the husband.
The wife argues that the parties were married and cohabited for over eight years. There is one child of the marriage now age 10 years. The husband was employed for the first two years that the wife lived in Australia, but she could not work in paid employment as she had no English language skills. The husband collected a Centrelink benefit at times and also received rent for the former matrimonial home when the parties lived in the Middle East and for many months after their return to reside in Australia.
The husband is an Australian citizen. It was intended that upon marriage the wife would migrate to Australia. She left her home, her culture and language to set up a life with the husband in a different country. She returned with the husband to the Middle East from time to time and made a significant commitment to support her husband in the course of their married life.
Upon the birth of the child, the wife was initially the primary caregiver but relinquished that role when she left the Middle East to return alone to Australia in late 2012. The parties were modest in the lifestyle but there is no suggestion that they in any way agreed to keep their property interests separate from each other. The wife considered the former matrimonial home the family home during the period that they resided together in Australia. There is no requirement that the wife establish she made a significant contribution to the former matrimonial home, but it is reasonable to find that the commitment made by the wife in leaving her home in the Middle East was reciprocated by the husband in terms of an intention that they would have a life together, foster a family and enter into a marital partnership.
In the circumstances of this case I consider that it is just and equitable to consider altering the property interests of the parties by reference to s 79(4) of the Act.

ASSET POOL

The property interests of the parties are modest.
Whilst there is little disagreement in respect of the assets that comprise the pool, the focus of the evidence has been on the extent to which add-backs should be considered.

ADD-BACKS

As already considered, Murphy J in Watson v Ling (2013) FLC 93-527 placed significant importance on the termination of the legal and equitable interests of each of the parties. The flow on effect has an implication in respect of the concept “add-backs”.
The position following Stanford is that the concept of an add-back being a notional item of property to the interests held by either of the parties, will have limited compass in the future.
In Watson v Ling (supra), Murphy J at paragraph 33-34 said:-
First, consistent with existing authority, it can be recognised pursuant to Section 75 (2) (o) (c), for example Omacini & Omacini [2005] FamCA 195, Brown & Green (1999) FLC 92-873 and Sereni [1998] FamCA 143. Secondly, it might be contended that it might be recognised within the assessment of contribution. This Court has long eschewed the notion of “negative contributions” (see, for example, Antmann & Antmann (1980) FLC 90-908). It might be argued that the “non-dissipating party” can be seen to have made disproportionately greater indirect contribution to the existing legal and equitable interests (for example to their preservation) if it is established that, for the other party’s unilateral dissipation, those existing and legal equitable interests would have been greater or of a greater value.
The assessment of the circumstances under discussion is, ultimately, a matter of discretion. Equally however, authority dictates that it will be the exception rather than the rule that a direct dollar adjustment equivalent to the amount of the alleged dissipation of the pool is made to the otherwise entitlement of a party.
In Truman & Truman [2013] FamCA 765 Fowler J had to consider the treatment of legal fees incurred by each party. Both the husband and the wife had already paid approximately $200,000 in legal fees and the wife owed her solicitors and accountants over $350,000 in fees. At paragraph 54 his Honour said:-
This Court does not follow the practice of adding back and dividing non- existent assets. There is no warrant for doing so in the Act. That once fashionable practice was one which assisted in pointing perhaps a way to a just solution; however, there exists plenty of opportunity for the Court to come to a just and equitable assessment as to the source and application of funds in its consideration of contributions under Section 79 (4) and matters referred to in Section 75 (2) and also in particular 75 (2) (o).
In La Costa & La Costa [2007] FamCA 1176, the Full Court considered the treatment of add-backs to the asset pool in Chorn & Hopkins [2004] FamCA 633 and cited with approval the remarks of the Full Court in M & M [1998] FamCA 42:-
2.10It is well settled that save in exceptional circumstances a trial judge should deal with the property as at the date of the hearing and make adjustments taking into account the various matters set out under Section 79 (Wells v Wells (1997) FLC 90-285; Wardman v Hudson (1978) FLC 90-466; in the marriage of Geyl 7 Fam LR 219. However, the particular justice of the case may make it appropriate to notionally add-back assets which have been demonstrated to have been dissipated either during the marriage or post-separation. Normally it is necessary to demonstrate an appropriate basis for doing so, for example by wastage such as gambling or extravagant living. Kowaliw v Kowaliw (1981) FLC 91-092…additionally, because of the requirement for each party to bear their own costs, it is generally appropriate to add back to the pool of assets notionally any legal costs that have been spent on the litigation and to deal with the costs as a separate issue at the end of the litigation (see Farnell (1996) FLC 92-681).
Following Stanford, I consider that whist it is still open to a Court to consider that an appropriate way forward is to add property back to the interests of each of the parties, such an outcome would be rare and may well be restricted to those circumstances where there is a realistic possibility that the property might be retrieved or in consideration of the add back of property used for the payment of legal fees.

Rental income deposited into the husband’s sons’ account from February 2011 until September 2013

The evidence supports the wife’s contention that rental monies were received by the husband’s son and following his direction, remained in an account.
Mr L Tesut gave evidence in support of his affidavit filed 4 November 2016. He acknowledged receiving his father’s instructions that the rental income would be placed into his account, but provides evidence as to how those monies were dispersed.
I am satisfied from a careful consideration of his affidavit, the annexures containing bank accounts and other supplementary documents and his evidence under cross examination, that monies received on account of rent have been dispersed either directly in respect of the outgoings pertaining to the former matrimonial home, or by monies being provided to the husband which have been spent on his day to day expenses.

Rental income from 26 December 2013 to present

The wife seeks to add back the sum of $14,000 calculated by her to be 52 weeks of rent leading up to the husband returning to reside in the former matrimonial home. The wife alleges that the husband has not accounted to the wife in relation to these monies given that the husband continued to receive Centrelink benefits as well as rental payments.
The husband has not provided his tax returns for the relevant years, nor has he made discovery of any bank statements for money received.
The husband argues that the amount is modest and has been utilised on his normal expenses.
I accept the evidence of the husband. It is unlikely that the husband’s financial circumstances are such that in the absence of any significant financial support for the ongoing costs of the child, that the husband would have been able to cover his expenses from Centrelink benefits alone.

Westpac account balance at separation

The wife seeks to add back $6,928 being the balance of the husband’s Westpac account at separation. The husband’s evidence is that the monies have been expended Westpac account. The sum is modest and I find has been properly expended by the husband.

Monies advanced by husband to the husband’s sister-in-law

The husband disputes the wife’s allegation that he provided $40,000 by way of loan or gift to his sister-in-law. Whilst some monies were provided, no evidence is presented to support the assertion of the wife and in the absence of any evidence I do not propose to add back monies allegedly provided to the husband’s sister-in-law.

Commsec shares

The husband agrees that he sold his Commsec shares in the sum of $11,190 and that those monies were used to assist in the payment of his legal fees.
It seems reasonable that those monies should be added back into the pool as being an exception on the basis that the monies were used for legal fees.

Monies received by wife at separation and pursuant to insurance payout

The wife disputes the husband’s allegation that she took $27,000 when she left the Middle East. The wife argues that the husband made a false allegation to the police in the Middle East, but that the complaint about monies having been taken by her was withdrawn after the divorce.
The wife has fully disclosed the insurance payout in respect of events that happened in 2013 and a payment in 2014 post-separation. The monies were in any event used to repay loans to friends who had provided money for her living expenses.
I am satisfied that any monies that may have been received by the wife were spent on normal day to day expenses and have not been saved or quarantined.
Accordingly, other than the sum of $11,190 from the sale of the Comsec shares which is to be added back, I do not propose to add back any other sum on account of either the husband or the wife.

ASSETS OF THE PARTIES

E Street, Suburb F (husband)	515,000
Motor vehicle (held by husband in the Middle East)	6,450
Motor vehicle (held by husband in Australia)	850
Commonwealth Bank account (husband)	2,000
Proceeds of sale of Commsec shares used for legal fees (husband)	11,190
TOTAL	$535,490

The husband has an entitlement to superannuation with AXA fund of $1,696. The wife has not disclosed any superannuation entitlement. Given that the husband is likely to have satisfied a condition of release, I propose to add into the list of assets the value of the husband’s superannuation interest.
The total asset pool is $537,186.

CONTRIBUTIONS

Section 79(4)(a) – financial contribution

This is a short marriage spanning eight years. There is one child now aged 10 years.
The wife does not assert that she made any direct financial contribution to the acquisition of the assets held by the husband, but in particular the former matrimonial home. The husband acquired the former matrimonial home prior to them meeting.
The husband was employed for the first two years of the marriage. The wife did not undertake employment. The main source of income whilst the parties lived in the former matrimonial home was a Centrelink benefit, but whilst they remained in the Middle East the family also benefited from the rental income of the former matrimonial home.
I accept the husband’s evidence that he took money from Australia to the Middle East which was used in their living expenses, but also to purchase the motor vehicle.

Section 79(4)(b)

There is little evidence as to any real non-financial contribution either made directly or indirectly in respect of the property of the parties.

Section 79(4)(c)

The parties both fulfilled the role of homemaker. Other than for the initial period following the date of marriage the husband has not worked. He has generally been available to assist the wife in the care of the child, although I note the evidence of the husband in respect of his employment in retail. It is likely that the husband held such employment, but there is little direct evidence to assess the extent of the husband’s commitment and obligation.
Whilst the wife maintained a role in caring for the child following separation, thereafter she has spent no time with the child. Following the husband’s return from the Middle East he remained in the wife’s home for about four months before returning to the former matrimonial home.

Section 79(4)(d)

Neither party is employed other than some part-time employment undertaken by the wife.
The husband is unlikely to re-enter the workforce. The wife has more opportunity to do so. I do not consider that any order made will have any impact upon the earning capacity of the parties. The husband has indicated an intention to place the former matrimonial home on the market irrespective of whether the child is able to relocate to the Middle East or not.
Accordingly, any order for settlement of property in favour of the wife is unlikely to alter the husband’s plans. He will not return to the Middle East unless he is able to do so with his daughter.
Taking into account the relevant contribution factors, the respective contributions of the parties should be recognised as 70/30 per cent in favour of the husband.

Section 75(2) factors

The husband is aged 66 years and the wife 33 years. The husband is not currently in employment and is unlikely to work again. He has been in receipt of Centrelink benefits in respect of his unemployment status for many years. He holds few work skills or qualifications. His health is also suspect.
The wife is keen to re-enter the workforce and currently undertakes modestly paid part-time employment. She does have the advantage of support from her current husband and her evidence is that she is motivated to advance her circumstances.
The husband also has the ongoing care of the child. In the circumstances as have been presented (and now conceded by the wife), in the short to medium term it is unlikely that the child will spend significant time with the wife and accordingly the entire financial obligation in respect of the child’s care falls to the husband. At present the wife does not pay child support and as such the most significant factor pursuant to s 75(2) is the husband’s care both physically and financially for the child in the absence of any contribution by the wife.
I do not consider there are any relevant factors that need to be given weight under s 75(2)(o) of the Act and I propose to provide an adjustment of 10 percent to the husband in recognition of s 75(2) factors.

CONCLUSION

Accordingly, the rights of the parties in respect of matrimonial property should be adjusted to reflect an 80/20 split of the total property including superannuation in favour of the husband.
The wife retains no property and accordingly, on the basis that the total property held by the husband is $535,490 plus his superannuation entitlements and accordingly there will be an order that the husband pay the sum of $107,437 to the wife within ninety days of the date of this order. In default, the former matrimonial home is to be sold and the wife is to receive the settlement sum together with default interest.
I make orders as appear at the commencement of this Judgment.

I certify that the preceding three hundred and seventy one (371) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 15 June 2017.

Associate:

Date: 15 June 2017

[2017] FamCA 419

15 June 2017

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Injunction

Remedies

Jurisdiction

Costs

Procedural Fairness

1950	Husband born in the Middle East
1970	Husband migrates to Australia
1972	Husband marries first wife, Ms M
1974	Husband becomes an Australian citizen
1974	Husband commences employment at Company Q
1973	Husband’s first child born (“Mr N”)
1975	Husband’s second child born (“Mr L”)
1976	Husband’s third child born (“Mr O”)
1984	Wife is born
1988	Husband’s fourth child born (“Ms P”)
1988 – 1989	Husband has accident whilst working at Company Q and is unable to work for one year. He receives $90,000 compensation
1989	Husband retires from Company Q
2001	Husband and first wife separate
2001	Husband purchases unit at E Street, Suburb F, NSW for $280,000 (unencumbered)
December 2001	Parties meet in the Middle East (husband then returns to Australia for 2 years and 4 months). Note: husband says parties met in 2003.
2004	Parties marry in.
January 2005	Husband returns to Australia
March 2005	Wife moves to Australia to live with husband
2006	Date of birth of parties child, B
10 June 2008	Wife and child return to the Middle East
October 2008	Husband returns to the Middle East
December 2010 – 27 April 2011	Husband returns to Australia
25 February 2011	Husband instructs his adult son Mr L to receive rental income on husband’s behalf
20 December 2011 – 20 April 2012	Parties and child return to Australia for a holiday
20 April 2012	Parties and child return to the Middle East
10 September 2012	Wife returns to Australia
27 September 2012	Wife’s Australian permanent residency expires
2 October 2012	Husband granted “full custody” of child by Court in the Middle East
October 2012	Husband reports child commences “boarding school” in the Middle East. Wife fears child is in an orphanage
20 November 2012	Parties divorce
December 2012 – April 2013	Husband returns to Australia and stays with wife. Child remains in the Middle East at boarding school or living with paternal grandmother and paternal aunt.
April 2013	Husband return to the Middle East
17 September 2013	Wife commences proceedings in the Federal Circuit Court of Australia
23 October 2013	Husband returns to Australia for daughter Ms P’s wedding. He does not bring the child with him
23 November 2013	Husband returns to Australia permanently. He does not bring child with him
26 December 2013	Child arrives in Australia with paternal grandmother and is collected from airport by husband and paternal relatives
27 December 2013	Husband takes child to see wife at R Park, Suburb R. Wife has not seen child for over 12 months
27 December 2013 – 6 January 2014	Husband takes child to visit wife and reports child is “reluctant” to spend time with wife
6 January 2014	Incident occurs at husband’s house between wife and husband. Husband calls the police and an Apprehended Violence Order is made
7 February 2014	ICL appointed
Early 2014	Child begins seeing psychologist, Ms S
Early 2014 – August 2014	Wife and child commence supervised visits at Suburb R Contact Centre. Visits cancelled shortly thereafter due to child’s aggressive behaviour
27 August 2014	Proceedings transferred from Federal Circuit Court of Australia to Family Court of Australia
7 October 2014	Family Report prepared
2015 – 2016	Child attends upon Dr C
2016	Wife remarries
10 May 2016	Wife applies to become Australian citizen