Idelsohn and Idelsohn
[2017] FamCA 398
•11 May 2017
FAMILY COURT OF AUSTRALIA
| IDELSOHN & IDELSOHN | [2017] FamCA 398 |
| FAMILY LAW – PROPERTY – application by husband for a division of property - application by husband for a Gett – issue as to how to treat the paid legal fees including funds in trust – superannuation – contributions – where order is made to effect an overall division of property and superannuation assets in proportions where wife receives 65 per cent and husband receives 35 per cent in circumstances where Court is satisfied the wife’s overall contributions were greater than the husband’s – husband’s application for a Gett dismissed |
| Family Law Act 1975 (Cth) |
| Bevan & Bevan (2013) FLC 93-545 |
| APPLICANT: | Mr Idelsohn |
| RESPONDENT: | Ms Idelsohn |
| FILE NUMBER: | SYC | 5787 | of | 2014 |
| DATE DELIVERED: | 11 May 2017 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 27 February 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Richard Schonell S.C. |
| SOLICITOR FOR THE APPLICANT: | Karras Partners |
| COUNSEL FOR THE RESPONDENT: | Ms Clifford |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan |
Orders
Mr Idelsohn (‘the husband’) and Ms Idelsohn (‘the wife’) shall do all acts and things necessary and execute all documents, instruments and writings needed to sell B Street, Suburb C being the whole of the property contained in Certificate of Title Folio Identifier … (‘the home’) and shall, including the following:-
1.1.Within twenty eight (28) days list the home for sale by public auction with a real estate agent as the parties may agree or failing their agreement a real estate agent nominated by Mr D (‘the single expert property valuer’);
1.2.Instruct such solicitor/s, as the parties may agree within twenty eight (28) days, to act in relation to the sale of the home. In the event that they are unable to agree, such solicitor shall be nominated by the President of the Law Society of New South Wales at the request of either party;
1.3.Execute all documents reasonably requested by the Real Estate Agents for the sale of the home;
1.4.Set a reserve price of $3,200,000, or such other sum as is agreed between the parties or in the event of a dispute to be determined by Mr D (‘the single expert real estate valuer’) at the request of either party if it is to be less than $3,200,000;
1.5.Co-operate with the agent in the presentation and promotion of the home for sale and equally pay such marketing costs as are required to be paid in advance;
1.6.Pay the costs of undertaking any agreed improvements to assist in the marketing of the home;
1.7.Maintain the home in a presentable state of repair;
1.8.Attend at the auction sale and negotiate with the highest bidder in the event that the reserve price is not reached and to accept a price not less than 5 per cent lower than the reserve price;
1.9.Co-operate in every way with the Auctioneer in relation to the auction of the home; and
1.10.Execute all contracts and documents necessary to complete the sale.
Both the husband and wife shall each be permitted to bid at the auction of the home and if either the husband or wife acquire the home on such sale; such acquisition is to be treated as being made pursuant to these orders.
In the event that the home is not sold either:-
3.1.Pursuant to auction sale in accordance with Order 1 hereof; or
3.2.Within seven (7) days of the date of the auction by negotiation with the highest bidder, or otherwise;
then the husband and the wife shall do all acts and things necessary and execute all documents required to cause to be held a further auction of the home within two months after the date of the first auction and the terms of these Orders shall apply accordingly in relation to such further auction save and except that the reserve price shall be 5 per cent less than the reserve price nominated for the purposes of the prior auction.
Upon settlement of the sale of the home, the parties shall do all acts and things necessary to distribute the proceeds of sale of the home in the following manner and priority:-
4.1.In payment of contract adjustments incurred in the sale, if any;
4.2.In payment of agent's commission and any auction fees on sale;
4.3.In payment of legal costs and disbursements of the appointed solicitor acting on the sale for both parties;
4.4.In the even that either party has incurred reasonable costs (agreed by the parties in advance) in readying the property for sale and the other party has not contributed 50 per cent towards those costs; such amount shall be deducted from the share otherwise payable to the non-paying party and paid to the paying party; and
4.5.Subject to these orders, in payment to the wife of 65 per cent of the then remaining proceeds of sale less $64,523 and in payment to the husband of 35 per cent of the then remaining proceeds of sale plus $64,523.
Subject to the following order; within twenty eight (28) days the wife shall, make available for collection by the husband such of the following items of personal property, provided that they are in her possession or control and have not been previously provided to the husband:-
5.1.The white jewellery box formerly owned by the husband's mother together with the jewellery contained in that box, including a Victorian Brooch and jewellery;
5.2.The Victorian Brooch and other jewellery formerly owned by the husband's mother;
5.3.The set of crystal glassware, (being at least thirty (30) items) formerly owned by the husband's parents;
5.4.The crockery formerly owned by the husband's parents;
5.5.The old bedside table formerly belonging to the husband's grandmother; and
5.6.The husband's passport and other personal papers and documents.
5.7.IT IS NOTED that the wife asserts that the crockery formerly owned by the husband’s parents, in order 5.4 herein has been returned and the wife has agreed that if any further of that crockery is discovered she will provide it as soon as practicable to the husband.
The wife is restrained from making any claim, demand or bringing any suit or proceedings against the Trustees of the E Trust and the wife shall, within twenty eight (28) days of being requested to do so by the husband, do all acts and things necessary and sign all instruments and documents and writings required to relinquish any interest or entitlement that she may have in the Trust, including the rights to be considered as a beneficiary of the Trust.
The husband’s application for orders that the wife facilitate or join in his application for a Gett is dismissed.
All extant applications, other than any applications for costs, are dismissed.
In relation to any application for costs, such will be made in accordance with the Family Law Rules 2004.
At the end of the appeal period all other subpoenaed documents be returned to the persons or institutions from which they emanated and all other exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage senior counsel and counsel to attend.
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 Idelsohn & Idelsohn 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 HOBART |
FILE NUMBER: SYC 5787 of 2014
| Mr Idelsohn |
Applicant
And
| Ms Idelsohn |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Mr Idelsohn (‘the husband’) and Ms Idelsohn (‘the wife’) are in dispute in relation to division of their property following the breakdown of their marriage. These parties had previously been in dispute regarding the parenting arrangements for their four children, F aged 12, G aged 10, H aged 8 and J aged 7. Fortunately, the parties were able to resolve the parenting matters, a few weeks prior to the final hearing, and I will refer to the consent orders later on in these reasons.
THE ISSUES
There were limited issues between the parties and they were able to contain the property proceedings to a one day hearing.
In terms of the pool of property there was an issue as to how to treat the paid legal fees including funds in trust.[1]
[1] Exhibit A3 joint balance sheet items 33, 34, 36 and 37.
There are loans to the husband from his brother totalling $10,000 and from a trust totalling $50,921. There were also questions of the wife's unpaid income tax for the financial year ended 30 June 2016 and unpaid work in progress and disbursements.
The parties were in issue as to the extent of contribution from the commencement of their cohabitation, which was the date of their marriage, until the date of hearing. It was the husband's contention that his contributions were, overall, greater than the wife and should be adjusted on the basis of overall contributions by him of 55 per cent and 45 per cent by the wife. He conceded an adjustment in favour of the wife in relation to the other factors to the extent of 5 per cent. Overall the husband sought an adjustment of property on the basis of equality including adjustment of superannuation on that basis.
The wife's contention was that she should receive between 75 and 80 per cent of the property and that the husband should receive between 20 and 25 per cent of the property. The wife sought no adjustment of superannuation. The wife seeks orders that the parties otherwise retain interest in property in their possession or control with the exception of a jewellery box and jewellery, which apparently belonged to the husband's mother, and some crockery, which may or may not be in the wife's possession and control.
The husband sought an order effectively requiring the wife to support his application for a Gett.[2] I have dealt with that later in these reasons.
[2] A Jewish bill of divorce.
The orders each the parties respectively sought set out in a case outline.[3]
[3] Husband Exhibit R1, wife Exhibit A1.
BACKGROUND
The applicant is aged 55. He was born in Africa and migrated to Australia in 1977, and Australia is his permanent home. He is presently employed as a driver and undertakes some part time work. He says he is in good health.
The husband is a very religious man who each day devotes many hours to religious observance and study. He asserts, and I accept, that he will soon be earning an income of between $50,000 and $70,000 per year. Given the extent of his religious observance, I am satisfied that since separation, he has not earnt the income which he otherwise had the capacity to earn.
The wife was born in 1968 and is aged 48 and was born in Europe. The wife has some health concerns which she has set out in her affidavit.[4] She apparently arrived in Australia in about 1996. The parties commenced cohabitation at the time of their marriage in 2004.
[4] Affidavit of wife sworn and filed 13 February 2017 (‘the wife’s trial affidavit’) paragraph 180.
I am satisfied that whilst the wife has health concerns, these have not significantly reduced her capacity to undertake her role as primary carer of the children and to undertake paid employment. The wife is qualified as a consultant and was in full-time employment until 2009. Since that time she has undertaken consultancy work. I accept that the wife has some capacity to earn additional income, although this capacity is significantly constrained given her primary responsibility to care for the parties’ children.
There are four children of the marriage to whom I have referred to earlier in these reasons and whose ages I have had regard in terms of the underlying reasons for the property orders.
The parties settled the parenting arrangements with the children by consent orders made by a registrar on 10 February 2017.[5]
[5] Exhibit A2.
Those orders provided essentially that:-
·the children attend K School for their secondary education. The orders noted that the husband has agreed to pay the costs of and incidental to the children attending that school including, but not limited to, school tuition fees, uniforms, text books and school excursions by way of non-periodic child-support. The evidence before me was that the fees were about $6,500 per year for all four children. It is an agreed fact that the wife has at all times been the primary carer for the children;
·the parties have equal shared parental responsibility of the children in respect of all long term decisions concerning the care, welfare and development of the children;
·the children live with the wife;
·the husband spend time with the children during the school term as follows:-
-from the date of the Order until term one 2019 the husband to collect the children from the mother’s residence each Tuesday morning during school term and take them to school.
-the children spend time with the husband from the conclusion of school on Wednesday or 3.00pm on a non-school day until the commencement of school on Thursday, with the husband to collect the children to and from school or from the mother’s residence if a non-school day.
- each Thursday from the conclusion of school with the husband to deliver the children to the wife's home or their extra-curricular activities.
-in a two weeks cycle, in week 1 until term 4 2017, the children spend time with the husband from afternoon Friday, or 3.00pm on a non-school day and he is to deliver the children to the wife on Sunday evening. From term 4 2017 onwards he will deliver the children to school on Monday morning.
-In week 2 the husband collects the children from school on Friday afternoon and is to deliver them to the wife's home by no later than 4.30pm. That two week cycle seems to operate only through school term.
·Until term 1 2019 the children spend time with the father during each school holiday period as agreed between the parties in writing and failing agreement in a two week cycle as follows:-
(a)In week 1, for a period of three consecutive days;
(b)In week 2, for a period of four consecutive days.
·From term 1 2019 the school holidays will be as agreed between the parties with the children to spend time with the husband for the first half of each school holiday period in odd numbered years and the second half in even numbered years. This relates to the term 1, 2 and 3 school holidays.
·For the Christmas New Year period the children are to spend about three weeks with the husband.
·There were other orders made in relation to holiday, religious days, children's birthdays and the like.
The parties separated on 8 April 2014 on which date the husband left the former matrimonial home at Suburb C (‘the former matrimonial home’). The wife and children have resided in that home since that time. The husband has paid school fees of about $540 per month for the children.
The wife and the children have solely occupied the former matrimonial home since separation. The parties agree that the only option for them is to sell the home after the determination of these proceedings.
Shortly before separation the sum of $200,000 was paid into the parties’ bank accounts being monies contributed directly by the husband's father, and I have had regard to that in terms of contribution. The parties divided their savings on separation (including the $200,000) with the husband receiving about $50,000 and the wife $280,000.
In addition the wife had other savings as alluded to by Mr Schonell in his submissions:-[6]
… you know that the wife had $470,000 of their savings at the date of separation, and he had about 50 [$50,000], so that’s a pretty big financial contribution made by my client to the support of the wife and the four children, plus he moves out of the home. Now, we know some of that 470 [$470,000] exists today. It’s in the wife’s bank accounts of about $96,000. It’s in her paid legal fees of about $158,000. But even if you put those two together, what it means is there’s about $216,000 that’s spent by the wife on the support of herself and the children in the period post-separation. I’m not critical of her for doing so, but when you look at the contributions, [$216,000] post-separation, gee whizz, it’s really close to the $200,000 that my client’s father gave to my client which was utilised by the parties just prior to separation, so that’s a significant financial contribution by my client in the post-separation period.
[6] Transcript of Proceedings dated 27 February 2017, page 93 –lines 33 to 41.
As such the husband has contributed to the support of the children although not by payments of periodic child support, but in terms of the provision of those sums which were legitimately applied to the benefit of the family, vis $216,000 over slightly less than three years.
In terms of paid employment, the husband has undertaken four years full-time in professional work although that employment was not renewed. He is working as a driver and I refer to the comments I made earlier.
The wife holds a Master’s degree. I accept that she was earning about $120,000 per annum with her then employer up to when she ceased work in about 2009. The wife now has the care of the children and I do not accept that she has the present capacity to earn that level of income, bearing in mind her responsibilities for the primary care of the children.
The husband acknowledged that the wife enjoyed superior earnings during the course of the marriage. I do not, however, accept that it now translates into an earning capacity given the matters to which I have earlier referred and the wife's absence from full-time work for about seven years.
In her trial affidavit the wife set out a schedule of the gross income received by each of the parties from 2004 until 2016.[7] It is significant that the wife earned income in excess of $120,000 in the 2004, 2005, 2007 and 2010 years, albeit the 2010 year was made up of a significant component upon the wife leaving her employment. I accept that part of that component relates to work undertaken by the wife prior to marriage and part after marriage. In the other three years referred to, being 2006, 2008 and 2009, the wife earned substantial income with the exception of the year 2006[8]. Since then the wife's income has been primarily as a result of interest on investments and the like.
[7] Wife’s trial affidavit paragraph 80.
[8] Ibid.
I accept the wife's overall income during the course of the parties’ cohabitation was substantially greater than that of the husband.
Neither of the parties has re-partnered.
In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context of the statement.
THE EVIDENCE
The husband provided evidence in terms of:-
(a)his trial affidavit filed 3 February 2017;
(b)his financial statement filed 19 January 2017;
(c)the affidavit of a property valuer, Mr D, (‘the single expert’) filed 22 November 2016;
(d)his initiating application filed 16 September 2014; and
(e)his financial questionnaire filed 10 April 2015.
The husband relied upon his case summary and submissions by his Senior Counsel in terms of the outline of the orders he sought. The case summary was tendered as Exhibit A1.
Tendered in evidence by the husband, in addition to his case summary was:-
(a)Exhibit A2 – consent orders (parenting);
(b)Exhibit A3 – joint balance sheet; and
(c)Exhibit A4 – costs notification.
The wife relied upon the following:-
(a)her trial affidavit filed the 13 February 2017;
(b)her financial questionnaire filed 22 April 2015;
(c)her further, further amended response filed 13th February 2017;
(d)her updated financial statement filed 13 April 2017; and
(e)her undertakings to disclose filed the 13 February 2017.
The wife's case outline was tendered on the basis to which I referred earlier and is Exhibit R1.
In addition she exhibited to her affidavit a bundle of documents, which was in evidence before me, subject to any objections. The outline of that material was set out in the wife's case outline.[9]
[9] Item D pages 7 and 8.
The balance sheet, albeit an exhibit of the husband, was an agreed balance sheet and there were limited items in dispute.
The affidavit of the single expert was read into evidence, through the husband's case outline, which listed it as a document he relied upon. The single expert opined, and I accept that the former matrimonial has a value of $3,200,000.
It is clearly the view of both parties that the former matrimonial house is likely to achieve more at auction. Time will tell in that respect.
Each of the parties tendered a cost statement. In terms of the husband his statement was Exhibit A4. In terms of the wife her cost statement was Exhibit R2.
Evidence of the husband
The husband gave evidence in terms of the material referred to in his case outline and was cross examined.
The husband has incurred legal costs in the course of these proceedings totalling $104,213 and the estimate for the hearing will be a further $14,800. The $104,212 was paid essentially from drawings by the husband against a trust which he operated with his brother, and so were not funds of the parties. There are funds in the trust account of his solicitor totalling $19,000 and I was told, by his senior counsel, that he will receive a refund of about $4,000.
The wife’s exhibit showed legal costs paid and were estimated on trial to be some $186,694. That included an estimate of about $50,000 for a four day hearing. I was told that estimate can be reduced by 75 per cent, to about $12,500, given that the hearing was conducted over one day rather than four days. The wife has deposited in her solicitors trust account $41,322 and will receive a refund of about $9,750. I accept that the whole of the paid costs by the wife came from the savings accumulated by the parties over the course of the marriage and I have factored that into the assessment of contributions to which I will later refer.
Consequently, I will not otherwise add-back the legal costs paid and unpaid. I will treat as an asset of the parties the refund due to the wife of $9,750 and the refund due to the husband of about $4,000.
The husband works part time in addition to his work as a driver where he works every day except Saturday. He works about five and a half hours a day and spends about two and a half to three hours studying and about three to four hours per day in his part time occupation.
The husband earns about $1,200 per week and spends about $1,500 per week.[10]
[10] Husband’s financial statement summary page 2 income page 3 and expenditure pages 4 and 5.
The husband is a trustee of the E Trust (‘the Trust’). This was a trust established by a deed of settlement in April 1981. The beneficiaries are the husband, his brother and his parents. He understands his children may be discretionary beneficiaries. The trustee of the company is L Pty Ltd. The husband essentially leaves the running of the company to his brother. The assets of E Trust were accumulated by the husband's parents and include bank shares and investment in the M Unit Trust. The Unit Trust is the part owner of a business in Melbourne (a 3.45 per cent of that business).
The husband has suggested, on a number of occasions, that a single expert forensic accountant be appointed to provide a valuation report in relation to his interest in the trust, but the wife has not sought any such investigation.
The husband has received significant funds from the trust over the years. This is treated as income and it seems that it is included in his taxable income referred to in the wife's affidavit and the husband’s trial affidavit.[11]
[11] Husband’s trial affidavit paragraph 35.
The husband has received significant amounts of money from the trust since separation. The wife deposes and I accept that:-
167. At separation [the husband] and I had $330,000 in savings …
168. We agreed to divide the funds $50,000 to [the husband] and $280,000 to me …
169. I used part of these funds to make improvements to the home, including replacing the deck and back doors …
(a) tax invoice from [Company N] dated 20/2/2015 of $4,862 (for deck); and
(b) tax invoice from [Company O] dated 17/2/2015 for $7,784 (windows).
These facts are set out in the wife's affidavit and were conceded by the husband.[12]
[12] Wife’s trial affidavit paragraph 187.
Following separation, the husband has been paid regular sums of $10,000 and amounts totalling some $290,862 up to 28th of December 2016. He requests these sums from his brother and so far these requests have been met; I am satisfied that it is likely to continue into the future. However, I do not know how long it will be before the funds are exhausted given that there was no valuation of the assets or property of the Trust. This income has been a significant financial benefit for the husband and I have had regard to that in terms of contribution. The husband has spent these funds on groceries and living expenses since separation and I infer that he has likely used these funds to pay his legal costs or significant part of them.
In his 2015/2016 tax the husband asserted that he had income in the form of a capital gain of $111,458. The husband provided no cogent explanation for this capital gain and consequent tax liability.
The husband had money in a fund called the P Fund of about $13,000 and he disposed of those funds and applied it to rent the like. He pays $852 per week rent.
The husband gave evidence that when his father died there was a bond refund to the father's estate of about $695,000. His mother has paid a similar bond to the nursing home where she resides which was refunded, but his evidence is that the bond is likely to be paid back to the nursing home for her different and more intense supervision. The money goes back to the Trust when the husband’s mother passes away.
The balance sheet shows a loan to the husband from the Trust of some $50,921. The husband was cross-examined and given his answers and nature of the Trust I am satisfied that it is unlikely that he will need to repay that sum. I am satisfied that the Trust will provide funds well into the future, although over what period of time is not clear and I can only treat it as a short period into the future.
In relation to the wife’s assets at the time of cohabitation the husband concedes that she had shares and options, some vested and someone unvested. He conceded that current Company Q shares were part of the shares that the wife had at that time and/or acquired through those options.
In terms of his employment the husband said that he had partly completed a BA and worked in a professional role for four years from 2006 to 2010 and he ceased employment in about January 2010. He said, and I accept, that he has been unable to find full-time work in such a role since that time. The husband conceded that the wife was the primary carer of the children and that her income was greater than his. He also conceded that the wife was primarily responsible for running the family finances.
The husband gave evidence frankly but from his own subjective point of view. His evidence was not in any way impeached and there was no submission that I should treat his credit other than endeavouring to properly inform the Court.
Evidence of the wife
The wife provided evidence in accordance with the trial affidavits and in the other documents relied upon her. She accepted that the former matrimonial home had to be sold, but wanted a higher reserve price.
In her trial affidavit the wife provided details of her savings at the commencement of the relationship. There was some criticism of her that she only provided statements for some months before she married however, I accept that all of her relevant documents were produced to the husband or his legal advisors.
I accept that the wife paid $60,000 towards the parties’ wedding. Trying to piece together finances from some thirteen years earlier is sometimes easier said than done. I accept the wife's evidence as to her contributions set out in her affidavit with the exception of some shares. The wife had Company Q shares and options from her employment with that company. She annexed her investment account in relation to those shares, which showed that at the time of the parties’ marriage the wife had shares of $30,250.66, had exercisable stock options and $47,076 and unvested stock options of $40,896. These have subsequently been acquired to some extent and the wife now has shares in Company Q arising from this investment totalling $144,678. I will treat these shares as having a value as set out in the annexure vis $30,250 and that the wife had a financial resource in terms of her exercisable stock options and unvested stock options which had a value of some $89,000 at that time. I have had regard to that in terms of contribution.
At the time of cohabitation the wife also had an entitlement to superannuation of namely $36,830. Further, she had shares and stocks inherited from her late grandmother valued at about £3,900 which are now the property referred to in Exhibit A3, items 17 to 21. They have simply moved into those structures.
Shortly before the birth of the fourth child the wife left full-time employment. She received a significant benefit from Company Q which related to her employment both before and after marriage.
She gave evidence, and I accept, that she undertook the significant share of children’s care and looking after the children.
She has not applied for child support.
As I said earlier, at separation the husband and wife had joint savings of $330,000 which were divided $50,000 as to the husband and $280,000 as to the wife. In addition she had her own savings of about $193,000 making a total of some $473,000. She applied this to living expenses, in the absence of direct child support. She acknowledges the amounts paid by the husband other than periodic child support set out in his trial affidavit, and she has applied those for the living expenses for herself, the children and legal expenses. She has savings remaining of about $95,000.
The wife was asked about some possessions of the husband and conceded she has a white jewellery box which was once owned by the husband’s mother. She is to make this and some jewellery available the husband. The wife was cross-examined as to the crystal glassware and crockery and said she had returned that material. However, she said if she found others she would certainly return it to the husband.
She attended to the financial management of the family's funds during the relationship.
I accept the wife's evidence to be reliable, again from her own subjective perspective. It was not challenged and I was not asked to make adverse findings except in relation to the savings of $60,000 towards a wedding and I have addressed that elsewhere. I accept that, like the husband, she is a reliable witness.
The Law
It is s 79(2) of the Act that deals with the division of property of parties to a marriage. One of the preferred approaches used in determining such property disputes is a four step one which involves:-
(a)The identification, in the context of ordinary legal principles, of the existing legal and equitable interest of the parties in the property;
(b)consider any relevant contribution and other matters that should be taken into account under s 79(4)(a), (b) and (c) of the Act.
(c)The evaluation of the matters referred to in s 79(4)(d), (e), (f) and (g) of the Act including the matters referred to under s.75(2) of the Act, and
(d)A determination as to whether the result is just and equitable by reference to s 79(2) of the Act.
In Stanford v Stanford (2012) 247 CLR 108 the High Court’s confirmed that the first step requires the identification of the existing legal and equitable interests in property of the parties. Thereafter a Court must determine whether it is or is not just and equitable to make an order altering the parties’ property interests.
Often, given the circumstances of the parties that step will be uncontroversial; as is the case each party seeks orders for adjustment of existing property interests pursuant to the Act. In doing so the parties assert that it would be just and equitable for such orders to be made. These parties had ended their marriage and consequently their common use of property. That separation ended their assumptions, which underpinned their property arrangements up to the date of separation. Accordingly, I am satisfied that the just and equitable requirement in s 79(2) for the making of orders under s 79(4) is met.
This approach was later adopted in Bevan & Bevan[13], where Bryant CJ and Thackray J noted that the Stanford v Stanford (supra):-
decision serves to refocus attention on the obligation not to make an order adjusting property interests unless it is just and equitable to do so.[14]
[13] (2013) FLC 93-545.
[14] Ibid at para 65.
In Chapman v Chapman[15]the Full Court considered the independence of ss 79(2) and 79(4) and agreed that Bevan v Bevan correctly stated the law in relation to the Courts consideration of s 79(2), whether the making of an order is just and equitable. At paragraph 19 of their joint reasons Strickland and Murphy JJ confirmed:-
Section 79 demands a consideration, separately, of all of its requirements without conflation.
[15] [2014] FamCAFC 91.
However, their Honours disagreed with any intention of plurality found in Bevan v Bevan, (supra) in that the Court must consider the matters in s 74(2) when addressing s 79(2) of the Family Law Act 1975 (Cth) (‘the Act’). This was in view of the opposite approach adopted by the High Court in Stanford. Bryant CJ in a separate judgment noted:-
Whatever differences may exist as to the meaning of [84] and [85] of Bevan, I am in agreement with Strickland and Murphy JJ that it is not a requirement to take account of the matters in s 79(4) when considering the question of whether it is just and equitable to make any order under s 79(2). But as long as they are seen as separate and not conflated, the factors in s 79(4) have the potential to inform the decision under s 79(2) …
I have not conflated the factors set out in s 79(2) with s 79(4).
The parties’ property
I have not included the value of the former matrimonial home in this list although I have been conscious of its value and that it will be sold by auction.
Property and liabilities
Husband E Trust $51,780 Wife ANZ A/C #...82 $607 Wife ANZ A/C #...64 $188 Husband ANZ A/C #...04 $3,245 Husband ANZ A/C #...77 $186 Wife ANZ A/C #...09 $10 Wife WBC A/C #...50 $51 Wife WBC A/C #...63 $91,388 Wife WBC A/C #...00 $4,160 Wife Company Q shares $144,678 Wife NIB shares x 2,200 $10,142 Wife S Group shares x 622 $3,538 Wife Company T shares x 385 $9,527 Wife Sainsbury x 123 $505 Wife Tesco shares x 644 $2,038 Wife Cash at U $3,375 Husband Motor vehicle 1 $10,000 Wife Motor vehicle 2 $6,700 Wife Contents $5,000 Husband Contents $3,500 Husband Designer watch $2,100 Wife Jewellery (estimate) $10,000 Husband Legal fees refund $4,000 Wife Legal fees refund $9,750 Wife R Trust superannuation fund $106,535 Husband V Super $46,077 Wife ANZ Visa debt ($7,656) Husband ANZ Visa debt ($7,756) Wife Unpaid tax ($6,081) Total $507,587
The husband may have some entitlement to his mother’s estate. I have given that possibility not weight.
In terms of the former matrimonial home, I have indicated elsewhere its value is agreed at $3,200,000, but it is to be sold and the value is to be determined at or around that figure by the market. I intend to make an order enabling each of the parties to bid at the auction, if they so choose, and any acquisition by them at the auction will be treated as an acquisition pursuant to these orders.
I have not included the Barkus Doolan unpaid work in progress and disbursements as I have had regard to those in the broader context. Generally in terms of the legal fees I refer to the matters I have discussed elsewhere in these reasons. I have considered legal fees in terms of the contributions to which I have referred to elsewhere. I will be treating the approximate refunds due to each of the parties as property.
I have not included the P fund as it was disposed of during the separation period and was legitimately applied by the husband to his living expenses after separation.
There is a loan asserted to be due to the husband's brother in item 44 of the joint balance sheet. I accept that this sum was advanced. I do not accept that it will need to be repaid and as such, I have not had regard to it.
Similarly, the husband asserts that he owes the Trust the sum of $50,921. I accept that that is a loan due from the husband to the Trust. However, I find that it is unlikely to be repaid and ought not to be included as a liability and I will not do so.
The wife claims income tax of $6,081.00 is payable in relation to her financial year 2015/2016. I accept that the wife is competent in terms of finances and knows well what the tax liability is and I accept her evidence in that regard.
In terms of the superannuation, I will deal that later in these reasons.
The children have money in various bank accounts totalling $70,953. I have had some, but limited regard to that as it is a financial resource of the children in terms of the other factors to which I have alluded elsewhere.
CONTRIBUTION
Having regard to the evidence, I accept that the wife's initial contributions were substantially greater than those of the husband.
The wife claims, and I substantially accept, that the commencement of the parties’ relationship she was employed full time as a manager. She was earning about $122,000 per year. The husband was working in a professional capacity and I accept that he was earning much less. He did receive money from his father.
The wife had savings of about $55,938, money from her grandmother’s estate and a relatively new car. She had superannuation entitlements of about $36,000. She owned jewellery including some inherited from her family. I accept she and/or her family made a substantial contribution to the cost of the parties’ wedding. Whilst the wife's initial contributions in terms of shares was a modest $31,000, she did have the share options which subsequently created the significant asset in the Company Q shares, referred to in the balance sheet.
At cohabitation, the husband had a motor vehicle and savings which he claims had an all up value of about $50,000. He had rights under the Trust which paid him about a quarter of a million dollars over the period of the parties’ relationship plus $200,000 given by his father in 2013. I have referred to these later in these reasons.
The parties purchased the matrimonial home in 2007 for $2,100,000. To fund this purchase, the wife used about $1,100,000 from her father’s estate and the husband was gifted about $1,100,000 from his family.
The husband worked in paid employment and earned income, albeit generally less than did the wife. She says their income was:-[16]
[16] Wife’s trial affidavit paragraph 80.
Financial Year
Husband income
Wife income
2004
$33,749
$122,024
2005
$60,505
$120,914
2006
$30,810
$35,227
2007
$73,518
$126,428
2008
$74,189
$79,535
2009
$84,717
$88,300
2010
$90,906
$182,300
2011
$79,792
$33,434
2012
$72,402
$29,839
2013
$102,683
$19,422
2014
$42,021
$16,699
2015
$78,005
$18,232
2016
$14,945
$44,946
Total
$838,242
$917,300
Significant parts of the husband’s income came from his family. For instance he had a capital gain in 2015 of about $111,000. The husband is a discretionary beneficiary of the Trust.
The Trust was established by deed executed in April 1981. The husband’s parents were the ‘specified beneficiaries’ of the Trust. The husband’s mother is aged 89 and lives in a low-care dementia home and his father has passed away. The husband and his brother are now appointors of the trustee under the Trust as they are executors of their father’s estate. As such they control the Trust.
The assets of the Trust were accumulated by the husband’s parents and apparently include cash at bank and shares. In addition the Trust effectively owned 3.45 per cent interest a business in Melbourne, which the husband says has a balance sheet value of $81,158. The Trust formerly had an interest in another trust which was realised in 2015 with a payment of $784,000. The wife has not sought to value the trust assets.
The husband is not actively engaged in the administrative of the Trust, instead he leaves that task to his brother.
I accept the husband’s evidence that included in his taxable income over the years have been the following trust distributions:-
a)taxable income 2005 of $60,505 with trust distribution of $39,341;
b)taxable income 2006 of $30,810with trust distribution of $14,000;
c)taxable income 2007 of $73,518 with trust distribution of $5,000;
d)taxable income 2008 of $74,189 with no trust distribution;
e)taxable income 2009 of $77,555 with no trust distribution;
f)taxable income 2010 of $91,186 with no trust distribution;
g)taxable income 2011 of $79,792 with a trust distribution of $15,105;
h)taxable income 2012 of $72,402 with a trust distribution of $65,505;
i)taxable income 2013 of $106,427 with a trust distribution of $85,649;
j)taxable income 2014 of $42,021 with a trust distribution of $26,095;
k)taxable income2015 of $78,005 with a trust distribution of $2,994; and
l)taxable income 2016 of $14,945 with no trust distribution.
The husband had a credit of $108,106 in the Trust shortly prior to separation. Since about separation the husband has taken or borrowed monies from the Trust. As I have said elsewhere, the husband met school fees from his loan account. The present loan account of the husband with the trust now has a debit balance of $50,921.
The husband has from time to time undertaken work positions within his religious community and has done some part time work. He is now working as a driver.
The income of both parties was applied to the expenses of the family.
The wife received about $143,000 when she ceased paid employment with Company Q in 2009. In 2011 she set up her own company and earnt income.
The husband’s family have otherwise helped with the children’s school fees from time to time.
Following separation the wife was primarily responsible for the parenting of the children, albeit she and the children had exclusive occupation of the former matrimonial home.
The husband spent significant time in his religious devotion, thus leaving the parenting, including emotional support of the four children, to the wife.
I accept that the wife was responsible for cleaning and upkeep of the parties’ home, including the provision of a strict religious household. She attended to grocery shopping, preparation of food and the like. She primarily was responsible for meeting the children’s physical and emotional needs on a daily basis. This included arranging immunisations, attending upon medical practitioners, dentists and the like. If the children were unwell it was the wife’s primary duty to care for them. She was the primary carer of the children in terms of school and education. This included preparation of lunches, the transportation of the children for school, participating in school events, arranging school uniforms and project materials, attendance at parent teacher meetings and like. She was responsible for the children’s broader activities, such as birthday parties, ballet, gymnastics, swimming, art and school holidays.
I accept that she assisted the husband in seeking employment, including provision of career guidance, drafting resumes and the like.
I accept that the wife undertook regular maintenance of the home and garden and kept the home clean and tidy. She was responsible for the household’s laundry. She undertook minor painting tasks, repair work, maintenance of the gardens, housework including cleaning, dusting, washing and the like. I accept that from time to time the parties had the assistance of a cleaner.
The wife managed household finances.
The husband says that he made contributions in terms of the care of the children and household duties. Given the evidence of both parties, and the concession of the husband that these tasks were left primarily to the wife, I am satisfied that the overwhelming majority of that non-financial work was undertaken by the wife. The husband left the care of the children and the running of the household primarily to the wife. I find that the wife is likely to continue to be responsible for these onerous tasks into the future.
Around the time of separation the husband made contributions in terms of the $200,000 from his father's estate and contributions in terms of, indirectly, his payment of the wife's legal costs whilst his legal costs came from the funds from the Trust.
Much of the husband’s lifestyle has been accommodated by payments from the trust since separation.
The wife has made the sole contribution to the assets in the United Kingdom.
The wife helped care for the husband’s elderly parents particularly in the last 18 months so that they were able to live independently. I accept her evidence in that regard.
At separation the funds in the parties’ savings were divided as to $50,000 to the husband and $280,000 to the wife. Part of the wife’s share was used on house improvements, part in legal fees (of which I have had regard) and part for living expenses.
I accept the wife’s evidence that since separation the husband has paid school fees of about $6,500 per year for the last two years and levies and the parties shared some of the bills for stationary, uniforms and school books. The husband pays the children's medical bills if they attend upon the doctor whilst in his care. The parties have shared some larger medical accounts. The husband has purchased some clothing and footwear for the children and paid for bat mitzvah lessons for one child in 2017 and piano lessons for another. I accept that the parties have shared the cost of Youth Camps and children’s birthday parties.
I accept that since separation the wife has been solely responsible for the maintenance and upkeep of the matrimonial home. The husband did not spend overnight time with the children from after separation until September 2016.
The husband contends that his contribution should be treated as equal. He certainly made the whole of the contribution to the Trust which is referred to in the balance sheet and contributed significantly to the savings of the wife which is also in the balance sheet.
I have considered the parties’ legal costs in terms of the source of the funds to pay those costs to which I have earlier alluded and I have treated the refund to each of them as assets of the parties. I have not included the wife's work in progress as a liability and I have considered the costs as a whole.
I have dealt with the monies of the wife and I accept her evidence as to her contributions to their wedding for the reasons that I have set out earlier.
I accept that the husband's parents provided the parties with $50,000 as set out in his affidavit.
I have had regard to the significant savings which the wife has had following separation of some $470,000, although about $95,000 or $96,000 of that remains in place, part of that will be the subject of the refund of $9,750. The balance was used to provide for the wife and significantly for the children. This was in circumstances where the husband otherwise provided no direct financial assistance. I have had regard to the wife’s occupation the former matrimonial home with the children since separation.
In terms of superannuation the wife's superannuation was accumulated to a significant extent prior to the parties’ cohabitation and it has grown over the years.
The wife's contribution in that regard far outweighed those of the husband.
OTHER FACTORS
The husband is aged 55 years and is in good health. He expects to earn about $50,000 to $60,000 per year as a driver.
The wife is aged 48 years of age and asserts she has health problems, including having her gall bladder removed in 2014 and a possible tumour on her liver. She says she has suffered from sarcoidosis and has an enlarged spleen. She says she is morbidly obese. No medical evidence was tendered as to what impact this would have on her ability to parent or continue with paid employment.
I have previously referred to her work history of which I have had regard. The husband asserts that the wife does not fully exercise her capacity to be in paid employment. I reject that contention having regard to her parenting and homemaking duties. I do this in the knowledge of the consent parenting orders.
The wife has and will continue to have the primary care of the parties’ four children. This is a significant factor to consider.
Neither party is responsible for the care and of any other person, apart from their children.
The husband is not entitled to any pension, allowance or benefit under any law of the Commonwealth, State or Territory either in Australia or from another country. The wife receives Family Payments (Family Tax A & B, Large Family Supplement) of $206 per week.[17]
[17] Wife’s Financial Statement filed 13 February 2017 – item 12.
The parties have superannuation benefits to which I have alluded earlier in these reasons.
Neither party is a bankrupt person.
The parties have not entered into a binding financial agreement.
I have had regard to the age and state of health of both the parties. The wife is not in good health, but she has adequate health and she is well able to manage the children. I am satisfied she is only able to undertake part time work.
The wife has a primary care of the children of the marriage and that is likely to continue for the foreseeable future. The husband will pay the education expenses for the children and, should the wife choose, she can apply for child support which will further supplement her in respect of that.
It is an agreed fact that the husband’s mother has no capacity to change her will and the husband is one of the two beneficiaries in her estate. The only evidence of the assets of the estate are a $695,000 accommodation bond and income of some $50,000 per year.
I have had regard to the relevant authorities including De Angelis & De Angelis [1999] FamCA 1609 where the Full Court comprising of Lindenmayer, Finn and Holden JJ considered the likelihood of inheritances in property settlements and said:-
95. The discussion by the Full Court in White and Tulloch v. White (1995) 19 Fam LR 696 of this question of the treatment of anticipated inheritances in property settlement proceedings indicates that there is no absolute rule and that each case will depend on its own facts. However, we think it important to remember that the Court is required in exercising the jurisdiction under s.79 of the Family Law Act 1975 to accord justice and equity to both parties. The question therefore has to be asked whether, in the present case, it would be just and equitable to the husband for the Court to have ignored the probability that, in what could well be very short period of time (given the ages of her aunt and mother), the wife could well be the owner of two properties having a combined value of almost the same amount as the value of the parties' property currently available for distribution, and particularly in circumstances where the husband had been found to have done substantial improvement and maintenance work on both properties?
I do not adopt the process submitted by counsel for the wife that is to calculate the interest of 2 per cent and put a figure of $2 million in relation to the husband's mother. Under s 75(2)(o) of the Act, all I could have regard to is that he has a possibility of a bequest, but I gave it no weight. The evidence of the husband is that his mother is in good physical health. She is unable to change her will, but it is not clear as to whether the she will survive six days, six months or six years. Nor is it clear as to the costs of her health care and accommodation
In terms of contribution, I have accepted the evidence of the wife that she provided significant help to the husband by undertaking tasks which he would otherwise have needed to undertake such as those set out in paragraphs 114 to 120 of the wife's trial affidavit. I have had regard to those matters in terms of the wife’s contributions.
As such this expectation was given no other weight in terms sought by the wife.
ASSESSMENT
Firstly, given the positions of the parties, their contributions and other factors I am satisfied in all of the circumstances that the Court should exercise its jurisdiction and consider an adjustment of property between these parties.
Given all of the facts and circumstances to which I have alluded earlier, I am satisfied that the wife's contributions overall were greater than the husband’s. Having regard to all of the factors to which I have referred I am satisfied that on a contribution basis the wife's contributions amount to 55 per cent and the husband’s amount to 45 per cent and I will adjust the property on that basis. This will also include the parties’ superannuation.
In terms of the other factors the husband conceded that there should be an allowance over the wife and the wife seeks a significant allowance. It seems to me that on a pool of this size there should be an adjustment in the wife's favour of 10 per cent. The overall effect of that approach would be that the wife retains the non-house property and 65 per cent of the proceeds of sale of the former matrimonial home. As to the sale of that home, I have calculated for the purpose of this exercise a percentage division of 65/35 on the value of $3,200,000. This would mean about $2,080,000 to the wife and $1,120,000 to the husband.
I had considered using two pools having regard to the superannuation. However, I would have adjusted the superannuation of the same basis as the other property. The outcome is approximately the levels that each party has in terms of their present superannuation entitlements. The minor adjustment does not warrant a splitting order.
On the basis of the non-house property (including superannuation and allowed liabilities) having a value of $507,587; the wife is entitled to $329,932 and the husband $177,655. Given the non-house property (including superannuation and allowed liabilities) each has in their power and control, there would need to be a payment from the wife to the husband of $64,523. Given the circumstances of the parties there is no reason that this should not be paid to the husband out of the wife’s share of the proceeds of sale of the matrimonial property. The outcome would be:-
The wife’s property:-
Wife ANZ A/C #...82 $607 Wife ANZ A/C #...64 $188 Wife ANZ A/C #...09 $10 Wife WBC A/C #...50 $51 Wife WBC A/C #...63 $91,388 Wife WBC A/C #...00 $4,160 Wife Company Q shares $144,678 Wife NIB shares x 2,200 $10,142 Wife S Group shares x 622 $3,538 Wife Company T shares x 385 $9,527 Wife Sainsbury x 123 $505 Wife Tesco shares x 644 $2,038 Wife Cash at U $3,375 Wife Motor vehicle 2 $6,700 Wife Contents $5,000 Wife Jewellery (estimate) $10,000 Wife Legal fees refund $9,750 Wife R Trust superannuation fund $106,535 Payment to husband ($64,523) Wife ANZ Visa debt ($7,656) Wife Unpaid tax ($6,081) Total $329,932
The husband’s property:-
Husband Trust $51,780 Husband ANZ A/C #...04 $3,245 Husband ANZ A/C #...77 $186 Husband Motor vehicle 1 $10,000 Husband Contents $3,500 Husband Designer watch $2,100 Husband Legal fees refund $4,000 Husband V superannuation $46,077 Payment from wife to husband $64,523 Husband ANZ Visa debt ($7,756) Total $177,655
Having taken into account all of the relevant factors, I am satisfied that such an adjustment would in all of the circumstances be just and equitable. I will so order.
The Gett
In his application the husband sought order 3.5 which provides:-
3.5 In payment to the wife of the then remaining balance on the 7th day after the wife having voluntarily elected to do all acts and things necessary and willingly cooperated in the performance of all deeds or actions and having attended upon the Beth Din, Sydney, to grant to the husband a Jewish Bill of Divorcement (“Gett”).
In addition the husband sought an order that:-
4. In the event that the proceeds of sale of the home are available to the wife but that she has not yet complied with the provisions of Order 3.5 hereof, the wife’s share of the proceeds of sale shall be held in a controlled monies account to be conducted by the solicitors representing the parties in relation to the sale of the home and such funds shall be released to the wife upon both parties having confirmed to the said solicitors, in writing, that the Gett has been granted.
The provision of this order was designed to force the wife to co-operate in the performance of a Jewish Bill of Divorcement. This approach was discussed by Berman J in Ferro & Kople [2016] FamCA 409 where he said at paragraphs 440 to 461 which provides:-
440. The wife seeks an order that the husband grant her a Gett (Jewish bill of divorce) and that he do all things necessary to attend upon a Jewish Ecclesiastical Court in order to effect the grant of a Gett.
441. I am left in some uncertainty at the conclusion of the proceedings as to whether the position of the husband is that he now accepts that he should assist the wife in obtaining a Gett and if so then clearly there is no need to consider whether the Court has the jurisdiction to make the order as sought by the wife.
442. Under Jewish law, a divorce can be accomplished only by the parties. It is effected by the formal delivery by the husband and the acceptance of the wife of a bill of divorcement (a Gett) under the supervision of a Rabbinical Court namely, the Beth Din. The parties are divorced and free to marry again after the Gett has been delivered and accepted.
443. Outside of Israel the Beth Din lacks judicial power and thus an aggrieved spouse will often require recourse to the civil courts. Without a Gett, a woman will be unable to remarry at Jewish law and for a man it will be extremely difficult to do so. Such as woman is termed as an “agunah”, literally one who is “chained” to a man from whom she is unable to procure a Gett. Any child or children born to an “agunah” will bear the stigma and burdens of bastardy. It can have consequences that flow through the descendants who forever may be unable to rectify their situation.
444. The Court must consider two factors in determining whether an order should be made. Whatever the Court does, it must be consonant with the requirements of Jewish law or otherwise a Gett may be void for unlawful duress and the Court’s actions therefore futile. Secondly, from a public policy perspective, if not a constitutional one, civil courts should not be seen to become involved in religious matters.
446. In Shulsinger & Shulsinger (1977) FLC 90-207 the husband had entered an undertaking to attend the Beth Din to grant the wife a Gett. In return, the wife undertook not to pursue any claim for ancillary relief. The husband breached the undertaking. The Full Court held that on the facts in that case the Court could not issue an injunction to the same effect as the undertaking, but could require (and by implication enforce) such an undertaking on the grounds of justice. The Court held that such enforcement did not contravene s 116 of the Constitution.
447. In Steinmetz & Steinmetz(No 2) (1981) FLC 91-079 the Full Court held that a refusal to grant a Gett was relevant to a spousal maintenance application where the refusal effectively prevented the wife from remarrying and obtaining financial support from a second husband. The trial judge ordered that the husband pay lump sum maintenance of $4,000 to the wife but the sum was to be reduced to $2,000 if the husband were to grant the wife a Gett. By refusing to grant the wife a Gett the husband could effectively prevent the wife from remarrying and gaining the benefit of additional financial support which might come to her from marriage. The Full Court agreed with the trial judge’s approach. The circumstances in Steinmetz (supra) are not present in the current consideration. The wife is keen to secure a Gett as part of a process to separate herself financially and spiritually from the husband.
448. In Gwiazda & Ber (unreported, Family Court of Australia, Emery J, 23 February 1983), the wife, who refused to accept a Gett, was ordered, pursuant to the general injunctive power in s 114(3), to appear before the Melbourne Beth Din and to accept a Gett (if and when one was ordered by the Beth Din and granted by the husband). The order further required her to give validity and operation, according to Jewish law to any such grant of a Gett by the husband or order of the Beth Din. The judge specified that the order was not to be construed by in any way inhibiting or influencing any deliberation or decision of the Beth Din. Furthermore, the order was not to be construed as in any way inhibiting the wife from making an application or request to the Beth Din or denying her any right that she would otherwise have. Emery J accepted that:-
If this court does have jurisdiction to require the wife to take any action, it could only be to submit to the jurisdiction of the Rabbinical Court. She could not be ordered to consent to any order or procedures except those involved in putting into effect of any orders made by that tribunal… this court could not place any fetter on her right to make any application to or submission to such a tribunal. In like manner the Rabbinical Tribunal could not be required or ordered to grant a get.
449. His Honour considered that the Court was not being asked to determine what the principles were in relation to the religion of a party, but rather, simply to require that a party submit to the jurisdiction of a tribunal “set up well beyond time immemorial…by the religion of which the party is a professed adherent”.
450. In Shvemer & Shvemer [2000] FamCA 1769, Carter J refused a wife’s application to compel the husband to provide her with a Gett, finding the Court did not have the power to make the order sought. His [sic] Honour did not deliberate on why such an order could not be made.
451. In Joachim & Joachim (unreported, Family Court of Australia, Hase J, 13 September 1996) Hase J refused an application by the husband to compel the wife to accept a Gett finding it to be contrary to s 116 of the Constitution and outside of the Court’s jurisdiction.
452. In general, there is a clear separate between religious and civil authorities. It is accepted that the law leaves people to follow their own religious practices and beliefs subject only to the operation of ordinary civil and criminal laws. This approach derives from various sources.
453. Section 116 of the Constitution provides that:-
The Commonwealth shall not make any law for establishing any religion, or from imposing any religious observance, or for prohibiting the free exercise of any religion…
454. In only providing that the Commonwealth “shall not make any law”, the Constitution arguably only restricts that the legislative power of the Commonwealth, that is, the Federal Parliament. It does not restrict the executive or judicial powers of the Commonwealth, nor does it constrain the states of Australia.
455. In Reicher & Reicher [2008] FamCA 108, Young J made the following order by consent:-
That the husband forthwith appear, if and when called upon by the wife to do so, before the Melbourne Beth Din (Jewish Religious Court) and deliver into her hand a Gett (Jewish Bill of Divorce) if and when the same has been ordered, directed or recommended by the said Religious Court and do all other acts and things as may be required of them to give validity and operation, according to Halakhah (Orthodox Jewish law) to any such order, direction, recommendation or grant by the said Religious Court for a divorce in accordance with Orthodox Jewish law, provided always and it is hereby declared that this order not be construed as in any way inhibiting, directing, influencing, or controlling any deliberation, decision, order, decree, direction or recommendation of the said Religious Court or in any way inhibiting the husband or wife in making any application, request or submission to the said Religious Court or, save as aforesaid, to deny him or her any right or privilege he or she would otherwise have.
456. I do not consider that I have the power to make the order as sought by the wife. To do so would be to interfere in religious matters that do not involve behaviour that is in breach of the general civil or criminal law.
457. It has not been argued that the desire of the wife to obtain a Jewish divorce is in some way necessary as a corollary to the parenting orders. Indeed, the parties have not impressed as adopting to any significant degree orthodox Jewish law in their day to day practices.
458. Nor do I think it appropriate that the Court’s power to order injunctions should be utilised to require a party to attend a Jewish Ecclesiastical Court.
459. I do not consider that there is a concept of parallel law. The order that the wife seeks would have the consequence of elevating Jewish law to the status of civil law in Australia in particular the provisions of the Act. In any event, whatever qualification might be added to an injunctive order so that it is not seen as unnecessarily interfering with the Beth Din and its deliberations, nonetheless it compels the subject part to undertake and carry out a certain course of conduct.
460. If it is generally recognised that it would be inappropriate to enforce such an injunctive order by reference to the contravention and contempt proceedings of the Act, I am not of the view that it is appropriate to make the order in the first place.
461. Accordingly, I do not propose to make orders as sought by the wife in respect of the attendance of the parties before the Beth Din of Melbourne in respect of any application that may be made by the husband or the wife for a Jewish bill of divorce.
I am not sure whether this Court has either the jurisdiction or the power to make the orders sought by the husband and, sensibly, it was not argued.
In any event in a property matter if I had jurisdiction and power, given the circumstances of each of the parties in particular the wife and her need to provide accommodation for the children, I would not make an order for a Gett as sought by the husband, and as such the application for those Gett orders are dismissed.
I certify that the preceding one hundred and fifty one (151) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 11 May 2017.
Associate:
Date: 11 May 2017
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