Preiss and Preiss - [2017] FamCA 12

FAMILY COURT OF AUSTRALIA

PREISS & PREISS

[2017] FamCA 12

FAMILY LAW – CHILDREN – where the husband seeks a coercive order for the wife to move with him to Israel to enable the continuation of his relationship with their seven year old child – Application refused because of lack of supportive evidence to make such a drastic order.
FAMILY LAW – PROPERTY – where there was uncertainty about the nature of overseas pension funds to be treated as property – where the husband’s family had made what he claimed were loans to both parties but that was denied by the wife – where contribution factors considered – where the husband’s health was a factor for the purposes of s 75(2) but so was the extra responsibility for their child’s support carried by the wife.

Family Law Act 1975 (Cth)

Adamson and Adamson (2014) FLC 93-622
AMS v AIF; AIF v AMS (1999) FLC 92-852
Coghlan and Coghlan (2005) FLC 93-220
Doyle & Rusedski [2016] FamCA 317
Gin and Hing [2010] FamCA 617
Gosper and Gosper (1987) FLC 91-818
Kessey and Kessey (1994) FLC 92-495
Line and Line (1997) FLC 92-729
Morgan and Miles (2007) FLC 93-343
Oswald and Karrington [2016] FamCAFC 152
Pierce and Pierce [1998] FamCA 74; (1999) FLC 92-844
Sampson and Hartnett (No 10) (2007) FLC 93-350
Turner and Turner & Anor [2016] FamCAFC 121
U and U [2002] HCA 36; (2002) FLC 93-112

APPLICANT:

Mr Preiss

RESPONDENT:

Ms Preiss

FILE NUMBER:

MLC

10148

2014

DATE DELIVERED:

18 January 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

19-20 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Glass

SOLICITOR FOR THE APPLICANT:

Nicholas Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Smallwood

SOLICITOR FOR THE RESPONDENT:

Gadens Lawyers

Orders

That all extant parenting orders are discharged.
That paragraph 1 of the consent minutes placing the name of the child B born … 2009 (“the child”) on the Airport Watch List referred to in the orders made on 13 January 2015 is discharged.
That the husband and the wife have equal shared parental responsibility for the child born ... 2009.
That the child live with the wife.
That the child spend time with the husband as follows:
(a) During school terms, on a fortnightly basis:
(i)In Week 1, from after school (or 3.30pm if a non-school day) on Thursday until before school (or 9.00am if a non-school day) on the following Monday and for a similar period in each alternate week thereafter; and
(ii)In Week 2, from after school (or 3.30pm if a non-school day) on Thursday until before school (or 9.00am if a non-school day) on the Friday in each alternate week thereafter;
(b)For one half of each of the three mid-year school term holidays at times to be agreed and, failing agreement:
(i)For the second half during 2017 and for a similar period in each alternate year thereafter; and
(ii)For the first half during 2018 and for a similar period in each alternate year thereafter; and
(c)For one half of the long summer school holidays as agreed and failing agreement:
(i)Until the child commences Year 4 on a week-about basis spending the first seven days with the husband and the second period of seven days with the wife and thereafter on an alternating basis save that he shall be returned to the wife no later than 24 hours prior to the commencement of school; and
(ii)From the conclusion of Year 4 of school:
(a)for the second half in 2019/2020 and for a similar period in each alternate year thereafter save that he shall be returned to the wife no later than 24 hours prior to the commencement of school; and
(b)for the first half in 2020/2021 and for a similar period in each alternate year thereafter.
That paragraphs 2 to 4 and 13 and 14 of the husband’s proposed orders as set out in the Outline of Case document dated 16 December 2016 and paragraphs 10, 12, 13, 14, 17, 18, 30 and 31 of the wife’s proposed orders set out in a Case Outline document dated 16 December 2016 are dismissed.
That paragraphs 7-12 of the husband’s said proposed orders and paragraphs 2(d)-(k), 3, 4, 5, 7-9 of the said proposed orders of the wife are adjourned to 9.00am on Friday 27 January 2017 to enable the parties to file minutes of consent orders if so advised and to the extent that such minutes are filed by 4.00pm on 25 January 2017, the parties and their legal practitioners are excused from further attendance.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That forthwith, the husband transfer to the wife at her expense his interest in the property at M Street, Suburb Y and the wife indemnify the husband in respect of the mortgage encumbering such property and obtain for him as soon as practicable, any necessary discharge of that mortgage.
That the husband sign any necessary document to transfer to the wife any interest he may have in the funds held on behalf of the parties at X Bank in Israel.
That the husband (as trustee for the husband and the wife) pursuant to these orders forthwith place the shares held by him in K Limited on the market for sale with a broker agreed between the parties and such shares be sold at the best market price on the day listed for sale and upon the sale, the proceeds be applied as follows:
(a) First, to pay all costs, commissions and expenses of the sale;
(b)Secondly, to set aside in an interest bearing account in the joint names of the parties such agreed sum as the parties may be so advised, to pay any taxes anticipated arising from the sale; and
(c)Thereafter, to pay the balance to the wife (subject to such sum not otherwise exceeding her entitlement under these orders).
That the sum referred to in paragraph 11(c) be added to the sum referred to in paragraph 101 in the reasons for judgment this day and the combined sum be divided as to 55 per cent to the wife and 45 per cent to the husband.
That if the entitlement of the wife under paragraph 12 is not reached by the payment to her of the sum referred to in paragraph 11(c), the husband shall have 60 days from the day upon which the amount in paragraph 11(c) is available to the wife to provide the shortfall.
If the husband fails to pay the said shortfall within the time allocated under these orders, he shall forthwith thereafter place the Israeli apartment on the market for sale (as trustee for both he and the wife) and the net proceeds of sale shall be used first, to meet the entitlement of the wife under these orders and the balance thereafter shall belong to the husband.
For the purposes of paragraph 14 of these orders, if the sale of the Israeli apartment becomes necessary, the figure of $746,000 referred to in paragraph 101 of these reasons for judgment shall be altered and be substituted by the net price from its sale including any taxes arising therefrom and the necessary adjustment shall be made accordingly.
That there be liberty to apply in respect of paragraphs 11, 13 and 14 of these orders.
That interest shall accrue on the wife’s entitlement to any unpaid sum arising from paragraph 13 as and from the 60^th day from the day referred to in paragraph 13 of these orders.
That all extant applications are otherwise dismissed.

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 Preiss & Preiss 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 MELBOURNE

FILE NUMBER: MLC 10148 of 2014

Mr Preiss

Applicant

And

Ms Preiss

Respondent

REASONS FOR JUDGMENT

Mr Preiss (“the husband”) and Ms Preiss (“the wife”) have one child of their union, B (“the child”) aged seven who was born in 2009. The parents largely agree on the structure of the respective periods of time they will spend with the child but not where that will take place. The husband wants the court to make a coercive order for the wife to move with him to live in Israel and naturally, for the child to live there. The wife resists that coercive order. She desires to remain in Australia and for the child to live here predominantly with her. If that order is made, the husband will remain in Australia as well.
The fundamental agreement that underpins the proposal of either party is that regardless of whether it is in Australia or Israel, (excluding holiday periods) the child will live with the wife for nine days out of each fortnight and with the husband, for five days. In other words, even if the wife goes to Israel, she will be the predominant carer of the child.
There are two ancillary parenting issues:
(a)should there be an order that precludes the child from travelling overseas from Australia until he is 18 years of age; and
(b)should there be parenting orders for the summer holidays on a week-about arrangement before the child commences Year 4 at school or, an equal division of those holidays in a block period commencing immediately?
For the reasons that follow, it is in the child’s best interests to live in Australia and as agreed, predominantly with his mother. There should also not be injunctive orders preventing the child leaving Australia but there should be orders as proposed by the wife in respect of the Australian summer holidays.
It was common ground between the parties that orders could be crafted in respect of a range of other matters and it was agreed that the parties’ respective solicitors could send those to the court (assuming a parenting plan is not executed separately to orders) and accordingly, I propose to only make orders in respect of the disputed issues but otherwise adjourn the proceedings to allow the parties to file such documents as they consider appropriate.
Before dealing with the parenting issue, mention must also be made of the parties’ property dispute. There is little disagreement about what property the parties own but they certainly disagree about its division. I shall deal with that after the parenting matters.

Background

Because of the nature and extent of the whole proceedings, it is only necessary to deal with a limited amount of background.
As will be seen below, the net equity in the property of the parties after 12 years together is about $1.5 million yet their combined legal fees exceed one third of that. These proceedings have not been complicated yet the affidavit material was extensive, and in many ways, unnecessary. The expense in this case has sadly depleted a significant portion of the child’s future financial security.
The husband is 45 years of age and a professional by training but who has a specialised field. He does not work in gainful employment.
The wife is aged 45 years and also currently not employed. She is reliant on government benefits and has depleted savings and resources to support herself and the child. She too has professional qualifications and had used them in various employment positions until the start of 2016.
Both parties were born in Israel and have dual citizenship. They commenced living together in 2002 and married in 2004. Their relationship ended in 2014 and hence, they were together as a couple for 12 years.
In 2008, the parties made a decision to come to Australia primarily for the husband to pursue studies to obtain a PhD. There was significant (and ultimately unnecessary) dispute between the parties as to whether the move was intended to be permanent or not. It was the husband’s positon that it was not whilst the wife observed that they applied for permanent residence rather than some other form of entry visa and had made appropriate financial arrangements of a permanent nature in Israel. Because of the nature of the dispute, it is unnecessary for me to make a finding one way or the other.
It was common ground that the husband has significant mental health problems. He has been diagnosed with ADHD and throughout the period from 2009, has had difficulty with both study and employment. He did not complete his studies. He has attended psychiatrists and now sees a psychologist.
There was also a significant dispute between the parties as to who was the “primary carer” of the child from birth until the parties separated. An inordinate amount of emotional energy was spent on that evidentiary subject. In particular, the husband pointed to the fact that the wife was often absent, engaged in employment, and when she had the opportunity to spend time with the child, she was not interested. Conversely, the wife observed that the child had often been placed in child care and she had had to obtain employment to support the family. Whilst those simple statements point to a stark contrast, there is no dispute that at least in 2014, the husband took the child to Israel and he was away from his mother for almost two months. Even there, the parties did not agree about who was caring for the child in Israel and whether the husband was cooperative in maintaining communication with the wife. About those matters too, it is unnecessary to make any finding, because very shortly after separation occurred, proceedings commenced in this court and with both parties represented by lawyers, an agreement was reached that left the child predominately in the care of his mother and with the husband having regular contact. That consensual arrangement continued thereafter. It forms the basis of the weekly arrangements into the future during the child’s school terms.

The 2014 Israel trip

One issue that does become relevant to the question of the international travel dispute arises out of the fact that there was consensus that the child could go to Israel for a holiday in 2014 but the trip and stay was extended unilaterally by the husband. That now forms the basis upon which the wife says that until the child turns 18, he should not be allowed to travel overseas. For the reasons to which I turn below, there is no substance to that argument notwithstanding I accept that the wife has no trust in the husband (paragraph 5 of her trial affidavit) which leads to her fear that the child will not be returned. As I find, that risk is low.

Israel or Australia?

It was only when the trial began that the simplicity of the substantive parenting issue became clear.
In August 2016, the husband had filed a document saying he wanted the child to live with him. In September 2016, in discussion with the single expert witness psychologist Dr N, the husband spoke of desiring an equal shared care arrangement. That said, both of his proposals contemplated he and the child living in Israel but his position seemed to change.
At trial in December 2016, the husband confirmed his position was (and he maintains, and I accept, he always held the belief) that he would never separate the child from the wife. Thus, knowing the wife would never voluntarily return to live in Israel and confirming that he wanted her to have the child for nine days in the fortnight and he the remaining five days, there were only two options being contemplated. Either the husband remained with the child in Australia or he had to seek an injunctive and coercive order forcing the wife to move to Israel. That latter prospect had never been articulated before and in the two visits to Dr N, the husband had not made that his position. Dr N confirmed that the husband had told her of not wanting to separate the child from the wife but this litigation had not been conducted on that basis.
It is well understood that the court is not bound by the proposals of the parties and, subject to natural justice, the court can go outside of those proposals. That is not necessary or proper here having regard to the very clear positions of the parties.
As the trial commenced, the clarification just mentioned led to a new focus including whether the court had the power to make such an order but it also meant that much of the evidence of the parties was largely irrelevant. For example, much of the evidence said to underpin the husband’s proposal to relocate with the child to Israel was that his mental health would improve. Regardless of his health, there would be a sharing arrangement of the child on a nine:five days basis and accordingly, the wife would still remain the predominant carer of the child. The husband’s position as articulated in his proposed orders was that his primary proposal was to have been that the child move to live in Israel with him and the wife could spend time with the child both in Israel and in Australia with the husband returning from Israel three times per year. The husband acknowledged that was not in the child’s best interests because he did not want the child separated from his mother.
Despite the focus of the wife in responding to the husband’s affidavit about mental health issues, she was sufficiently comfortable that he was capable of caring for the child by virtue of her proposal of the nine:five days arrangement. When asked whether the court should be concerned because both the husband and wife acknowledged the husband’s mental health issues yet still agreed on a sharing of the child, Dr N said that as a parent, the husband was “good enough”.
Counsel for the husband in final address brought the threads of the husband’s case together in an endeavour to support the order of a joint move to Israel but immediately conceded that he had a “big hurdle” to jump. It is helpful to set out counsel’s outline because it underpins the way the husband’s case was finally put.
In point form:
·The husband does not need to demonstrate compelling reasons to live or work in Israel (Adamson and Adamson (2014) FLC 93-622);
·The court must be sensitive to the wishes and rights of both parents to live and work where they desire (Adamson (supra));
·The following core principles emerge from Morgan and Miles (2007) FLC 93-343 per Boland J:
(a)the child’s best interests are the paramount but not sole consideration; and
(b)the child’s best interest must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement;
·The court has the power to order the wife to move to Israel (Sampson and Hartnett (No 10) (2007) FLC 93-350; Adamson (supra); and also see Oswald and Karrington [2016] FamCAFC 152);
·The proper exercise of the coercive power is likely to require:
(a) the existence of rare or extreme factors (Adamson (supra));
(b)a finding of the wife’s right to live and work where she chooses so adversely affects the child’s best interest that her right should be interfered with (Adamson (supra)); and
(c)satisfaction as to the practicalities of life in Israel (Sampson (supra); Adamson (supra)).
·The power should only be exercised once all possible alternatives are considered.

A coercive order?

It is now not in dispute that the court has power to make a coercive order nor that the proper exercise of that power is at the extreme end of the discretionary range. It is also not disputed that rare or extreme factors must exist for that discretionary power to be exercised in a situation where the unchallenged primary caregiver of the children is expected to continue to fulfil that role.

In making its assessment, and therefore looking at all of the “rare” or “extreme” factors, the court needs to consider alternatives to restricting the wife’s freedom having regard to the nature of the care arrangement that the husband is proposing. It is in this exercise that there is a fundamental flaw in the husband’s case. The evidence to support a finding about those factors is missing.
The starting point is that it is the mother’s proposal that she remain in Australia with the child. She strongly opposes any move to Israel. An exploration of her position is necessary whilst keeping in mind that she does not have to have compelling reasons for that position. Even so, despite the discrete nature of the dispute, it is still necessary to examine the statutory considerations in Part VII of the Family Law Act 1975 (“the Act”) and to balance them to ensure that the ultimate determination is in the child’s best interests. That in particular requires a consideration of s 60CC factors. Before doing that assessment, it is notable that the only other witness of significance than the parents was Dr N. The husband relied on the evidence of his sister and also his mother. In respect of the former, her evidence was effusive about the husband’s capacity as a parent but not so in relation to the wife. Having regard to the agreed arrangements including those made shortly after separation, that evidence does not help me.
Dr N is a forensic psychologist appointed as the single expert witness and she undertook examinations and provided reports in both 2015 and again in 2016. She was only required for a limited amount of cross-examination most of which was directed towards the benefits to the child of having his father’s health improve by a move to Israel.
Importantly, Dr N said that the child would have been devastated had his father gone to Israel without him. That however, was a proposition that the husband was never to countenance. Dr N confirmed that it did not matter to the child in which country he lived and, having regard to his age, that is probably unsurprising.
Turning to focus on the husband, Dr N said that he could function better in Israel because he could obtain work there which he had not been able to successfully achieve in Australia.
As the husband’s mental health status was not disputed, Dr N thought he would improve if he was in Israel. Whilst to some extent that makes logical sense, the uncertainty remains as to what level it would improve. If the husband remained in Australia, Dr N thought it difficult to say that his mental health would be “poorer” but that was because in between 2015 and 2016 when she saw him, she detected an improvement. In this case, the husband has attended both a psychologist and a psychiatrist but I had no evidence as to what was happening professionally save that I was informed that the husband was taking medication. There was discussion about whether he suffered from depression but the evidence was lacking to enable me to make a finding that a move to Israel would remove all barriers to the husband’s capacity to work fulltime and to be a better parent if that is necessary here at all. So too, I have no evidence about future mental health issues if he remains in Australia and thus, generalisations about improvement or decline are rhetorical.
As a witness, the husband was initially distressed, generally very quietly spoken as the cross-examination progressed, and gave the appearance of being thoughtful. This is not a case in which it is necessary for me to make any general findings about credit and I am conscious that both parents undeniably have a significant role in the child’s future.
The wife was sufficiently comfortable about the husband’s health to agree to the proposed orders including for a block period of at least a week during school holidays.
Dr N described the child as an unusual child in his presentation in that he had problems with social skills and there were “question marks” about whether an autism spectrum diagnosis was possible. That does not seem to be an issue in this case as both parents not only love and care for him unquestionably but neither now accuses the other of being an incapable parent.

The evidence to justify a coercive order

The husband maintained that the wife was an “experienced high-level [IT professional]” and able to undertake that type of work in any country and “would be able to obtain employment in Israel” as she had many business contacts there including friends and networks. The paucity of substance in those remarks speaks for itself. They are conclusions, not facts. As against that, counsel for the husband pointed to the mental health issue and the possibility of that improving in Israel. He pointed to the fact that the husband could obtain employment in Israel (albeit there was no evidence of that nature called either) and the husband has his parents there along with the various cultural aspects which he considers important.
To show that the wife could move to Israel, her work history was highlighted by counsel for the husband. She commenced work in 1999 in Israel and has had a variety of employment positions in her specialised field. Most of the positions up until when she came to Australia were relatively short lived but she had constant employment. Her curriculum vitae is now in evidence (Exhibit H1) and that indicates her expertise as a specialist IT professional. She has worked for companies in Israel with international connections and has undertaken programs to extend her professional capacity. Since being in Australia, she has worked in various positions. In Australia, her salaries varied between $63,000 in 2014 and more than $100,000 recently. In 2014 she commenced her own business as a subsidiary of an American company but she described it as having no formal structure and there was no formal relationship between the United States entity and her own entity. Promoting herself, she described having 15 years’ experience and in-depth knowledge of the industry. Her website (H3) described her position as one of specialising in designing IT products. She also described herself as being known for “creative out-of-the-box thinking, tenacity and no-excuses approach for delivering great [products] on schedule and on budget”. This entity had a gross income in 2015 of $93,000. Nothing more was said about that but with the emphasis on “gross”, one imagines that her remuneration was not much more, if anything, than what she was earning as an employee. She explained that she had undertaken a particular program to see whether it worked for her and indeed, she had gone to the United States to undertake a master class in 2013. Despite that evocative picture, the wife conceded that the business which she commenced in 2014, failed. She said there were not enough clients and not enough marketing. She was endeavouring to do it all herself. She ceased that business operation. It was ultimately submitted that the wife had the capacity to work in Israel where she was experienced and well-regarded but much more evidence of opportunities, willingness to work, financial ramifications is needed to satisfy the “rare” or “extreme” factors to justify a coercive order. No exploration was undertaken as to how the job market or opportunities in Israel would suit her expected role of caring for the child nine days each fortnight.
In 2016, the wife obtained a new position as a team leader in a company as an employee with a salary of $110,000 and superannuation but she resigned from that, to use her words, because “she lost passion for [her specialty]” and she said that she wanted to do something on her own. She is currently pursuing that goal by undertaking research in psychology, mathematics, physics, biology and eastern philosophy. This, she described, was building a foundation for something new. Thus, I find that the wife has an extensive career in the IT industry but is no longer following that role and I am unsure if she will return. Whilst her experience indicates a good work record, her remuneration has not been extraordinary for someone with specialized knowledge. She has earned average to reasonable income. As I have already mentioned, there is no evidence to indicate there is an immediate market for her talents in Israel even if I accepted that her skills were readily portable. Significantly, there was no suggestion that the husband had made inquiries, or would make inquiries, to assist her in Israel nor, importantly, provide her with the necessary financial support to establish herself there.
In Sampson (supra) the Full Court made a number of important observations about coercive orders. The first was that the purpose of a coercive order is to “create” a situation rather than choose between situations that already exist and as such, orders need to be connected to the evidence in the case. Based on the limited evidence to which I have referred, there are more questions here than there are answers. The Full Court went on to say:
To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other party’s capacity to provide for such practicalities having regard to the orders proposed by the court. It is probably only in the circumstance of significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry.
On the closest analysis that I can undertake in relation to these practicalities, again the evidence is missing. There is no significant wealth here. I have already observed that the parties have spent over one-third of their wealth in legal costs. In the case of the husband, those costs have been funded by his sister who expects to be repaid over $300,000 (albeit not until some years hence) and in the case of the wife, she has drawn down accrued pension entitlements from a fund in Israel and still has an outstanding bill of over $80,000. The parties’ wealth in Australia is nominal. Their Australian real property is encumbered by a mortgage that exceeds the market value. A division of the remaining assets of shares and a flat in Israel will leave each of them with modest assets. In addition, there is no evidence as to how much would be required for the parties to re-establish themselves in Israel.
An important part of the financial consideration is whether the husband could assist the wife both in terms of capital but also financial support whilst she endeavoured to obtain employment in Israel. In his affidavit, the husband said he would provide the wife accommodation if she went to Israel but that was a reference to the abandoned position where he had sought that the child live with him in Israel with the wife visiting periodically. No new evidence about his capacity for a much greater commitment was forthcoming. There is irony in the fact that the husband’s sister lent him over $300,000 to fund the legal case and requires that sum to be repaid. Initially in the proceedings, the husband also claimed a debt was due to his parents for monies they generously provided to the parties during the relationship. That claim was abandoned but again, no offer was made of financial assistance from them should the husband’s proposal be implemented requiring the wife to move to Israel.
There is no evidence before the court as to the level of earnings the wife could achieve in Israel even if she pursued the career that she now seems to have eschewed. There is no indication as to what sort of housing is available and if rental was necessary, what impact that would have on the wife’s budget. Whilst the child could easily fit into the schooling system because of his parents’ adherence to similar cultural aspects in Israel to here in Australia, I have no understanding of whether he would be disadvantaged because of differing educational standards.
As the Full Court said in Sampson at [57], the exercise of the power as contemplated, would be rare because the effect is drastic. To force the wife to move to Israel without knowing to what she was going, would not only be drastic in this case but unjust. It is fundamental to keep in mind that the purpose for which the husband submits the wife should be coerced to move to Israel is to enable him to continue a relationship with the child that could be continued in Australia but the wife would remain the primary caregiver of the child. That same situation already exists here.
In his judgment in Sampson, Kay J (who seems to have doubted the coercive power) said at [120] that it was incumbent upon the trial judge to give proper consideration to the parents’ current and future capacity to communicate with each other and to resolve difficulties that might arise. To date, the parties have done that but the communication is understandably not good as indicated by the criticisms levelled at each other in their trial affidavits. Specifically arising out of the wife’s view that the husband over-held the child in the Israel trip in 2014, she now has no trust in him. It was not canvassed during this trial how those problems would be resolved if the wife was ordered to move to Israel. Having regard to what has occurred in the litigation, it would be unsafe to presume that with the husband in Israel and his mental health possibly improving, communication with the wife and some form of cooperative parenting would be workable or at least any more workable than here. No evidence was led about the enforceability of any orders this court might make in Israel. That may be necessary in circumstances where there is already an allegation of over-holding by the wife and accusations against the wife by the husband of a lack of interest in the child. I have no evidence of how the Israeli law would deal with Australian parenting orders.
Counsel for the wife submitted in final address that the court should take into account that the arrangement for the sharing of the child which the parties have agreed upon can be implemented in Australia because the husband has indicated that he would not go to Israel without the child. There is significance in that because in Sampson at [58] Bryant CJ and Warnick J concluded there was power under s 114(3) of the Act to enjoin a parent to relocate provided that that injunction was no more than was necessary to secure the best interests of the child. The paucity of evidence in this case makes the findings to which I return in a moment difficult to assess with any certainty. It is however certain that the future needs of the child could be met by the parties remaining in Australia.
As Gummow and Callinan JJ said in U and U [2002] HCA 36; (2002) FLC 93-112:
Just how far ahead it is possible for a trial judge to look, and how reliable long term predictions about domestic, marital and social arrangements in modern times can be, are matters upon which minds will inevitably differ. The exercise of looking to, and making orders for the future, is peculiarly a discretionary one.
Endeavouring to predict how successful a move for the child would be to Israel is very difficult absent some very clear evidence as to how the wife would manage such a transition. It was common ground that whilst her parents are still in Israel, she is estranged from them. The child’s only relationship with his maternal grandparents arises from the limited contact organised by the husband in 2014. There was no evidence as to whether they would play some role in the child’s life in the future.
The husband’s parents on the other hand do live in Israel and are aged 82 and 76 years respectively. The husband said that they were unable to travel to Australia because of their age but I have no understanding of what, if anything, their ages would have to do with assisting in the care of the child in Israel. When pressed as to what sort of relationship the wife understood that the child had with his paternal grandparents, she was hesitant, if not ambivalent, saying that the child played chess with his grandfather and board games with both grandparents. As such, it is difficult to assess whether separation from extended family by remaining in Australia adversely affects the child.
For the reasons to which I shall turn in a moment about international travel, it may be that there is no capacity for the grandparents’ immediate future travel and bearing in mind their ages, that would be unfortunate but just what role they could play remains unknown.
In terms of any prediction about the future, the child’s current school arrangements are working well. I have no similar understanding of what would possibly occur in Israel because I have no understanding of where the child would live. There appears to be an assumption by the husband that the coercive order would mean the wife would have to live somewhere in an Israeli city but there is no evidence to enable such an order to be crafted.
The husband’s sister lives in the United States and he has no other relatives than his parents. He has many friends in Israel whom he describes as similar to cousins but how important they are for the child and any connections with the children of those people, I know not. The evidence shows that whilst the child was in Israel with the husband in 2014, he attended a kindergarten into which he settled quickly and comfortably. In terms of a prediction, one might use that as an indication that the child could easily settle if the court ordered the wife to take him to live in Israel but again, I could not safely presume that the wife would be able to settle in the same area to that 2014 kindergarten.
As I earlier observed, the authorities indicate that injunctive relief should not be granted other than that which is reasonably required to achieve the objects of the legislation (see AMS v AIF; AIF v AMS (1999) FLC 92-852). The extent of the injunctive order proposed by the husband therefore remains vague.
It is necessary to observe that s 65D(1) of the Act empowers the court to make such parenting order as it thinks proper. Consistent with that propriety, the power to make a coercive order lies in s 114(3) of the Act which requires the court to make such order as is just or convenient. That justice and convenience must only be exercised if the order is proper for the child. In this case, all of the evidence militates against such an order.

Part VII of the Act

The husband proposed that an order should be made for equal shared parental responsibility whilst the wife’s final proposals remained silent on the issue. Nothing in this case indicated that the wife would not agree to such an order.
Both parents have parental responsibility for the child at the moment (s 61C), until a court orders otherwise. Section 61DA provides that when making a parenting order, the court must apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility.
Section 61DA(1) provides that the presumption of equal shared parental responsibility does not apply in two relevant situations. The first relates to abuse or family violence. Curiously, the husband made significant allegations against the wife of violence towards him. Each party sought intervention orders against the other at the time of separation or shortly thereafter. Those applications ended in agreement with both undertaking to behave responsibly towards the other. There are therefore no intervention orders in place and no suggestions that since separation, either has had to resort to court orders about family violence.
Because of the way the case was conducted on the discrete issues, little attention was paid to family violence evidence. The husband asserted the wife assaulted him and the wife denied it. I am not in a position to make any finding one way or the other. As such, the presumption applies.

Alternatively, where a court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests, the presumption may be rebutted. Because there was limited evidence about the issue of how the parties communicated, I am not able to find that they could not fulfil the requirements of the Act (s 65DAC) if they had equal shared parental responsibility. As neither party raised the subject, I have presumed they agree they can resolve decisions about the child’s future in relation to the matters described in the Act as Major Long-term decisions.
An order for equal shared parental responsibility triggers attention to the provisions of s 65DAA of the Act. The Court is obliged to consider equal time and substantial and significant time in that order, contemplating whether it is the child’s best interests, but also reasonably practicable. Here, the parties do not seek equal time but they agree that the arrangement of 9:5 days is best for the child. That construct fits the definition of substantial and significant time. There is therefore no need for the court to consider that provision any further.
There is no reason why the parties should not have equal shared parental responsibility.
In determining what is in the child’s best interests including whether a coercive order should be made, the court is referred to s 60CC.
Section 60CC(2) requires a court to consider how an order could be made that would enable the child to benefit from a meaningful relationship with both parents. Both parents reached agreement about their sharing of the child so I have concluded that they have thought it the best way for the child to have the benefits each provides.
The second primary consideration concerns the protection of the child. The husband expressed concern about the wife’s conduct towards him in front of the child but also made allegations that she showed no interest in the child at various times. For her part, the wife raised the husband’s mental health issues and expressed reservation about what he was doing in the care of the child.
Dr N thought, like most parenting, it is a learning experience and time seems to have enabled the child to become attached to both parents and he enjoys their company. The parties’ agreement as to time sharing in either country gives me comfort that neither sees a problem about the capacity of the other to protect the child from the matters about which s 60CC (2) is concerned.
The Act requires consideration of “additional considerations”. They can be grouped.
Section 60CC(3)(a) relates to the views of a child. There is no evidence that the child wants to live in a different arrangement than that which has been decided by his parents. There is no evidence that the child wants to live in any particular place. As Dr N said, he would live wherever his parents decided he should. The husband had said the child wanted more time with him but the child seems content with the proposed arrangements so there is no need for the Court to be concerned about his views.
Section 60CC (3)(b), (c), (ca), (f) and (i) address parental capacity and responsibility as well as the extent to which the parents have taken opportunities to participate and encourage participation in the child’s life. That includes the provision of financial support. The husband has not paid child support but then, nor has the wife sought it. There would have been little point in the wife pursuing it because the husband has been unemployed largely as a result of his health. That is something the wife has accepted.
That said, I have already mentioned the expense both have incurred in this litigation and the husband was able to borrow money to fund his costs. The wife had to draw down on the parties’ (effective) joint pension entitlements to not just pay her legal fees but also fund her living expenses. I do not raise these matters as a criticism but draw to the parties’ attention their focus was lost. That said, their very parenting agreement indicates each understands the parenting role to be fulfilled by the other and each is comfortable that the other is a protective, loving and responsible parent. There is therefore no need for expansive findings by the court.
Section 60CC(3)(d) and (e) require consideration of the effect on the child of being away from a parent or other family. I have already discussed the two sets of grandparents and need say no more. As for the parents, the wife’s evidence about the reaction of the child after the Israel 2014 trip was in contrast to that of the husband. Because of the discrete nature of the substantive issue, it is not necessary to make a finding about how the child did react to a resumption of his relationship with his mother. The subsequent arrangements after separation tend to point to the fact that she was the parent to whom his attachment was strongest. That becomes relevant to the questions still to be decided about international travel and summer holiday lengths for the next few years.
Dr N was hesitant about long gaps and, if the wife’s evidence of what happened after the Israel trip were accepted (and again I observe no finding is necessary), the parties need to contemplate how any long absence by either parent impacts on their child. It was put to both the wife and to Dr N that restricted holiday time limited the capacity of the husband to go to (for example) Israel.
I thought Dr N’s response was a good one: “I don’t care about travel” by which I understood her to mean that the issue should be viewed from how the child would cope rather than how inconvenient it was for the parent to have to curtail a holiday. Thus, for a while, there should be a limited absence from his mother.
The husband raised no similar concerns about a long block absence from him if the wife adopted his proposal but I do not criticise him for that; rather, he needs to work with the wife to decide what lengths of time the child can manage. That said, the wife chose the commencement of the child’s fourth year at school for long blocks of holidays to commence. I have no idea why that date would be appropriate but will make that the time on the basis that the wife considers the child will be ready and she was not otherwise challenged about it.
Section 60CC(3)(j) and (k) address family violence issues. Neither party desired to address those matters other than as they had. I am satisfied that in determining what is best for the child, family violence no longer plays a part.
I turn to s 60CC(3)(g) relating to the child’s entitlement to share in his parents’ culture later in these reasons.
This is a case where the parties need to move on with their lives and with the child a part of both. Final orders will assist that rather than having the constant litigation which has so damaged their capacity to deal successfully with each other as parents.

International travel

The wife’s proposed order is that there be no overseas travel by the child until he turns 18. That all arose from the “overholding” by the husband in the 2014 trip which the wife saw as unilateral and which culminated in the cessation of the parties’ relationship. There is no other evidence to indicate that the husband is some form of flight risk. As I observed in discussion with counsel, the biggest risk for the husband would be the long term loss of the child if he did not comply with orders.
Decisions about international travel are difficult to make because no-one can foretell the future (see Doyle & Rusedski [2016] FamCA 317 and Gin and Hing [2010] FamCA 617) but here, the wife’s objection is limited because of her one experience. There has otherwise been no suggestion of non-compliance with orders.
The discretion (on the basis that this is a parenting order which must be proper (s 64B)) must be exercised within the framework of the evidence that is presented. The husband has cultural and family ties with Israel. The child has an entitlement to share in that culture (s 60CC(3)(g)). Leaving aside why 18 is the appropriate age, an order of the nature contemplated precludes such things as school travel and indeed future holiday travel by the wife. That is not proper in the sense used in s 114 of the Act because the proposed order of the wife is far more restrictive than the needs demand arising from the limited evidence.
In Line and Line (1997) FLC 92-729 the following factors were said to be relevant considerations:
(a)The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here);
(b)The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues); and
(c) The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there); and
(d)Whether the country of travel is a signatory to the Hague convention.
The departing parent here would be the husband. He has no ties with Australia in the sense of property or financial interests at the moment. He would have reasons for not wanting to return with the child because he has a strong desire to go home to Israel and there remain. But against both of those, he currently has interests and family in Israel who have an interest in the child. He is an articulate and educated man who has respected the law. There is no evidence to indicate he has acted maliciously or surreptitiously in trying to keep the child away from the wife since the parties’ relationship ended; the overholding in Israel occurred before that.
The Hague Convention on the Civil Aspects of International Child Abduction is in force between Australia and Israel. This last point strengthens the argument for there not being such a restrictive order sought by the wife.
The husband’s position espoused to Dr N in 2015 and repeated in 2016 was that he would not want to separate the child from his mother. I have no reason to doubt he means that. That strengthens the argument for permitting the travel.
The determination of this particular part of the wife’s application is a discretionary one and it is a leap of faith in favour of the husband but I make it on the basis of the assessment of risk. Here, in my view, the risk is low having balanced all I have set out above.
The order should not restrict international movement.

Summer holiday periods

The difference in proposals between the parties lies in when periods longer than a week can commence. The difference is minimal but as I have earlier set out, the focus of the parents is different.
The husband understandably wants to travel internationally and, bearing in mind cost, a week overseas is seen as insufficient.
Dr N described the child as unusual but then questioned the underlying basis of that. Her view was that caution should be the basis for any change in routine. I think that a week by week proposition is a good starting point and when the year 4 schooling commences the parties will know what the child’s capacity to handle absence, particularly from his mother, will be.
I find it is in the child’s best interests to take the conservative approach having regard to the current poor level of trust and communication between the parties, the fact that the child is more attached to his mother than his father which may, for a while, mean a need for specific orders to regulate the child’s time. I take into account the cautionary approach of Dr N.
For the reasons set out, the orders that commence these reasons are in the child’s best interests.

Injunctive relief relating to bank account

I next turn to the property proceedings but one of the orders sought by the wife (15) seeks to restrain both parties from accessing the Israeli bank account other than for the specific purpose of reducing the mortgage on the M Street property. Having regard to the nature of the orders I propose to make in relation to property, that order is not necessary. Indeed, all previous orders in this case should be discharged.

Property dispute

The wife seeks an overall division of 70 per cent of the parties’ assets. The husband maintains that the wife should receive 40 per cent of those same assets.
Initially, the husband sought that his parents be repaid about $43,900 on the basis that in three tranches, they were said to have lent the parties money. That claim was sensibly abandoned, because apart from an assertion, there was no plausible evidence of a loan (as distinct from a simple assertion) and the wife disputed it was such. The same issue then became prominent because it was the husband’s position that the sums should be treated as a contribution by him. There is a certain irony about hopping from one concept to the other having regard to the adamant nature of the evidence that it was a debt to be repaid notwithstanding the period of time that has elapsed. I return to that issue below.
Also, the husband initially sought a return of chattels but after the wife’s evidence was given, that too was abandoned.
An overall division on a percentage basis does not amount to an alteration of property interests under s 79 of the Act. To achieve that percentage division, the husband’s position was that:
·The M Street property should be transferred to the wife and she should be responsible for the mortgage;
·Funds in a bank account in Israel should be transferred to the wife;
·The husband should retain his property in Israel along with his car and superannuation interests but also be responsible for any debts to his parents and his sister;
·That the wife retain the money she has taken from joint accounts along with her superannuation entitlements;
·Shares in K Ltd be sold and after payment of tax, the net sum be added to the list of assets and divided so that the wife receives a net sum of 40 per cent.
That particular methodology separated out the parties’ superannuation on a “two pools” basis but the husband sought to “add-back” legal fees that the wife had paid drawing upon one of the Israeli “superannuation” accounts.
It can be seen therefore that the formal alteration of interests depends upon a number of values including how the shares are sold, what price they receive and what, if any, tax is payable on them either in Australia or Israel. The shares are currently in the name of the husband.
The wife’s position was different in detail. She sought:
·The Israeli bank account be paid into the mortgage over the M Street property;
·The K Ltd shares be sold and the proceeds be paid to the wife;
·The husband be solely responsible for any capital gains tax or other tax or impost of whatever nature (but consistent with Turner and Turner & Anor [2016] FamCAFC 121 if any impost was attached to those shares and they were to be sold, counsel for the wife conceded that the impost had to be taken “off the top”);
·That upon the shares being sold and the net proceeds being made available, other assets be added to that sum and the net proceeds be divided as to 70 per cent to the wife;
·That the M Street property be transferred to the wife and she be responsible for the mortgage;
·That the husband retain the Israeli apartment;
·That each party otherwise retain what they had.
A variety of other orders appears under the heading of “Property” in the wife’s outline relating to passports, non-denigration, the husband attending a psychologist and also indemnities by the husband to the wife. Most of those are dealt with above under the parenting issues. In relation to indemnities, there is no evidence that the wife has any such liability and it is difficult to see how any claim could be made against her having regard to the nature of these proceedings.
In relation to passports, the wife should retain them as she will have the greater caring role of the child. As the intervention order proceedings appeared to have resolved parental confrontation and there is now no evidence of any repetition, I do not understand what evidence supports the non-denigration orders.

Superannuation

In Australia, superannuation is another species of property (Coghlan and Coghlan (2005) FLC 93-220). The provisions of Part VIIIB of the Act can only apply to trustees within the jurisdiction of the court and consequently funds in that same legal environment. It is difficult to know whether the various funds in Israel, sometimes described by the parties as superannuation and other times as pension funds, have the same legal status as Australian superannuation. No evidence was led as to the nature and form of these funds. The court was advised that the wife had been able to access some of her pension entitlement by drawing capital sums and she indicated that there were penalties and/or taxes associated with that but was also unable to say how much. She drew down significant funds both for the purposes of living and also to pay towards her legal costs. At best, her evidence indicated that she had invoices but they were not called for. In the absence of a very clear understanding of the nature and the form of these funds, it is better to deal with them as the parties have by separating them out and treating them as if they were superannuation. In any event, no splitting orders were sought. A dilemma arises because counsel for the husband prepared an outline which was produced only in final address and has added into the list of assets $32,805 said to be paid as legal fees by the wife from her “Israeli superannuation”. In my view, the amount should be greater and the wife’s counsel conceded so.
The approach of the wife was to indicate that she currently has $63,657 accrued in superannuation in both Australia and Israel but had otherwise drawn down $80,784. That money has now gone. Counsel for the wife conceded that it had to be dealt with because predominantly it had gone towards paying legal costs but there were other expenses as well. Counsel’s suggestion was that the court work on the assumption that albeit the superannuation figure was nebulous, if one took into account the wife should have had, at best $144,400 notionally, and the husband indeed had $151,600 or thereabouts, there should be no adjustment either way. The husband’s position as set out above indicates that he too does not want any alteration of any superannuation interests and that only leaves the question of whether if a “two pools” approach is taken, is a just and equitable outcome. Having regard to the complexity of this situation and the fact that those two sums notionally or otherwise, are not far apart, it seems to me to be a sensible course of action to take.
The parties do not want any alteration to be made to their “superannuation”. Their contributions to those funds can be seen to be equal; they agree on that. There are justifications for an alteration because of s 75(2) of the Act overall but in respect of the superannuation, as both parties are a long way from retirement, any predictive adjustment would not be just when I do not know what their respective economic futures hold. Unlike the non-superannuation assets which have an immediate value to the individual, superannuation has long-term benefit. An additional problem is the absence of evidence about the substance and form of the various superannuation entitlements. I am therefore satisfied no adjustment of the superannuation interests should be made here. Similarly, in looking at the non-superannuation assets, I should not take into account the superannuation entitlement because I have no understanding of its value to the party nor its substance and form.
In this case, it is common ground that to otherwise achieve a just and equitable outcome, an alteration of existing property interests is necessary.

As for what legal and equitable interests the parties have, there is no dispute. Accordingly, and rounding the figures up or down, I find the interests of the parties to be as follows:
The M Street property  $325,000
Less mortgage  349,000   $(24,000)
The Israeli apartment  746,000
The Israeli banking account   19,000
The trust   4,000
The husband’s car          6,000
Total  $751,000
In addition to those items, there are the K Ltd shares. The evidence about these shares, like the superannuation, was vague. This company is registered on the NASDAQ Index and the parties had differing values said to have been obtained depending upon what day the examination of the NASDAQ occurred. In the case of the husband, he thought they were valued at $814,506 whilst the wife asserted that they were valued at $831,731. Despite the way the case was initially commenced, the parties ultimately agreed that these shares had to be sold because of the unknown costs either by way of transfer and/or sale. The wife did not want the shares and therefore was not prepared to accept a transfer of them.
There was also some uncertainty about the evidence of the acquisition of these shares. The husband explained that he had initially been given options and over time, as investors came in to the company, he was granted more and in 2015, the options were converted into shares and the value has been calculated as a result of them being placed on the international stock exchange. In my view nothing turns on that issue.
The dilemma arises as to what value to place on them for the purposes of any alteration of property interests. If the husband’s view that 40 per cent of the total assets is a just and equitable outcome, there is more than enough money in the shares (if sold) to pay out the wife but if the wife’s position is correct, there would be a shortfall and the husband would have to find it, potentially facing the sale of the Israeli apartment. The dilemma one way or the other is that no-one knows what either the shares, or the apartment, would be sold for and more importantly, what if any impost by way of sale costs or tax would arise. Neither party had done anything about obtaining expert evidence and counsel for the husband conceded that endeavours to obtain that advice on the day of the trial had been unsuccessful. The conclusion therefore was that the shares had to be sold. The husband took a different view to the Israeli apartment.
Even in circumstances where shares are to be sold and costs arise, the court is placed in a dilemma if asked to make final orders. How does the court work out a just and equitable result when it does not know what sort of figures are likely to arise from such a sale? The results might vary from the anticipated values and even calculating a division on a percentage basis either as an holistic approach or on an asset by asset basis, is fraught with difficulty. However, both parties wanted the court to undertake this task. The safest way to assess the overall percentage division is to contemplate a range below and above the figure that the parties themselves suggest the shares are worth to get some sense of whether the percentages might alter on a sale. In my view, it would have to be a markedly different figure arising out of the sale after the payment of any expenses for the percentages to alter very much. It is not anticipated in this case by any party that that is a prospect.

The approach

Both parties accepted the general approach that the court had to assess contributions made by each of the parties and then make any necessary adjustments for the factors set out in s 75(2) of the Act.
When the parties commenced living together, the husband had an interest in the Israeli apartment and that was the place to which both parties moved after they commenced their relationship in 2002. It was the wife’s unchallenged evidence that subsequent to that cohabitation commencing, they each contributed towards the mortgage. At the time cohabitation commenced, it was common ground, the property was valued at A$136,000 (net). It is now unencumbered. After the parties moved from Israel to Australia, the property was let. There is no evidence to indicate how the mortgage was met other than by the tenants and no indication of any shortfall. Contributions of a financial nature made by the wife towards any shortfall in mortgages after receipt of rental from tenants was also absent in this case. Accordingly I have done the best I can in an holistic sense.
The husband claimed a significant contribution by virtue of the introduction of the Israelia property but there is little evidence as to how the current value of $746,000 was determined. It was an agreed figure.
Initial contributions have to be assessed in the same way as other contributions. Clearly, the mortgage over the Israeli property was significantly reduced by the tenants and any payments that the parties made. But the initial contribution is only one aspect of how the value of the asset got to where it is agreed today. It would seem that in terms of financial contributions, the husband has not worked in employment for much of the time since the parties came to Australia. As such, the wife’s contribution towards that asset (and others) has to be assessed in the light of the initial contribution. Nothing about this case suggested it should be approached on an asset by asset basis because none of the assets has been specifically isolated by either party. In Pierce and Pierce [1998] FamCA 74; (1999) FLC 92-844 the Full Court (Ellis, Baker and O’Ryan JJ) said that it was not a matter of the erosion of the initial contribution (by time) but what weight should be given to that initial contribution. No indication has been given in the evidence about increases in property value which might give rise to a seed capital argument. It is now 14 years since the parties began cohabitation and the contributions that the wife has made have not only been of a significant financial nature but also in her role as a homemaker and parent particularly in relation to the child. Since separation, she has been solely responsible for all financial support for the child and she was not challenged about that situation.
On the evidence about the Israeli property, the husband’s contribution is found to be greater than that of the wife but only in a marginal sense. Her contributions after she moved there and later, in Australia, when her financial efforts were the mainstay of the parties’ support must be seen as an indirect contribution to the value of the apartment. In present day terms, how that is calculated, remained vague. No reference was made to the distinction between mortgage payments and expenses for the apartment. The post-mortgage rental seems to have been the husband’s form of support. He was therefore living off an asset to which the wife had made a contribution. She was effectively supporting him. The wife’s various roles during the marriage must be seen as both direct and indirect contributions towards the assets. I find the husband’s contribution at the start is still recognizable but it was a long time ago and the joint efforts of the parties since the relationship began have enabled the debt to be repaid. In addition, the value has risen over time which must also be attributable to the wife’s efforts in making payments.
The parties agreed that their contributions during the relationship were to be treated as equal. With that concession, the only other disparity of contribution between the parties relates to the evidence of the husband concerning his parents’ “loans”. As I earlier indicated, counsel for the husband sensibly agreed to abandon the argument that they were loans but otherwise submitted that they should be taken into account as a contribution on the part of the husband. It was not disputed by the wife that the money was so paid but she indicated that they were payments as gifts.
A gift is treated as a contribution on behalf of the person who is the relative of the donor, unless there is evidence of the donor’s intention otherwise (Kessey and Kessey (1994) FLC 92-495). The dilemma here is the assertion that they were loans but that was denied by the wife. The evidence also does not support a conclusion that the money was paid to both parties as a joint gift but rather to the husband and both parties used it. In Kessey, the Full Court drew on the decision of Fogarty J in Gosper and Gosper (1987) FLC 91-818 where his Honour said much the same thing as the principle I have just indicated. His Honour said that depending upon the circumstances of the case, it was open to a court to look at the actuality and treat that as a financial contribution on behalf of the “spouse relative”. In my view, there is sufficient evidence here to justify a conclusion that these were contributions made by or on behalf of the husband. The dilemma however is the use to which those gifts were put. It was the husband’s evidence that the money was used both for the Israeli apartment and also living expenses. It is difficult therefore to quantify them in whole as a contribution towards the acquisition, conservation or improvement of property of the parties. The parties were renting accommodation in Australia and at various times, the husband was not working. The wife was the sole financial provider but does not dispute equality of contribution during the relationship. Again this is not a simple mathematical exercise but it is open to me to find that at least some of the money provided by the parents went towards the Israeli property and accordingly, the husband should be given some credit for that contribution.
Contributions however also come in other forms and although the parties have agreed that contributions during their relationship were equal, the wife appears to have undertaken major parenting role subsequent to separation. Having regard to the period of time since the separation occurred, that too is a modest contribution. She also paid the modest mortgage shortfall on the M Street property and since she moved into that property, she has had its exclusive occupation.
All of those matters together enable me to find that the husband’s contribution was marginally greater than that of the wife and to the extent that it is necessary to quantify it, I would fix it at a 5 per cent differential or about $77,000 more than the wife which reflects both initial contribution and some contribution by his parents offset by all of the contributions by the wife. That translates to 52½ per cent to the husband and 47½ per cent for the wife.

Section 75(2)

Section 79(4)(e) requires the court to consider the matters set out in s 75(2) before any order can be found to be just and equitable. The husband submitted that there should be no adjustment and counsel for the wife did not quantify any specific adjustment.
Based on the evidence, a number of matters can be found. The husband’s mental health situation restricts his earning capacity. His future employment prospects in Australia were not explored. There is no evidence that the wife has any impediment to obtaining employment and it was submitted by counsel for the husband that the court should take into account her employment history as an indication of her earning capacity. As I have already indicated, there is difficulty in that having regard to the various changes that have occurred in her employment but also the fact that she has now changed directions effectively abandoning the IT industry and is currently reliant upon government benefits. There is little therefore between the parties in that regard.
Just what the husband’s mental capacity would be for gainful employment after these orders are made remains unknown.
There is little doubt that the wife will have the major responsibility for the care of the child both physically and financially. The parties have agreed on an arrangement in terms of time but the wife will have to support the child either with or without government benefits. Since separation, the husband has not provided any financial support as I have earlier indicated. There was no suggestion that he would be able to provide financial support in the future. All of that responsibility will therefore fall to the wife.
Neither party has any other person upon whom they can rely for support nor are they responsible for any other person.
One other factor that must be taken into account is the size of the assets to be divided. For the reasons already indicated, the legal costs will significantly eat into the modest assets that the parties have to divide. In the case of the husband however, there is a benefit in that his sister does not require repayment for a number of years. The wife however has depleted her pension entitlements and has still got a significant sum of cash to pay to her lawyers for these proceedings. On any view, after payment of those expenses, there is little joy.
The major factor arising out of the picture about the parties’ future economic circumstances is that the wife will have the ongoing responsibility for the support of the child without much prospect of support from the husband. Having regard to the child’s age, that is a long period of time ahead. Offset against that however is the fact that even with some improvement in the husband’s mental health, his employment history would suggest that he would have difficulty keeping a job. For example, the wife deposed to the fact that the husband had a job after he abandoned his studies but having complained about the air conditioning in his employment site, had to leave. He has otherwise been dependent upon the rental from the Israeli property. Depending upon the outcome of the sale of the shares, there is every probability that the husband will need to find money to pay out the wife. No indication was given that he had the capacity to borrow that money or could rely on the largesse of his parents or his sister. That said, the husband’s counsel asked for the opportunity to raise the funds before a default order was made for the purposes of any sale of the Israeli property. If the Israeli property is sold, he has no income.
All of the economic factors still favour adjustment to the wife and as indicated, the support for the child will be significant for a number of years.
Having adjusted the contributions in favour of the husband, I find that an adjustment must be made in favour of the wife and in my view, the appropriate overall outcome of these proceedings taking into account the potential range for the sale of the shares, an adjustment of 7.5 per cent of the anticipated net values which sum must be real and meaningful by reference to the overall assets of the parties and in this case, it amounts to about $116,000 which translates to 55 per cent in favour of the wife and 45 per cent in favour of the husband. It is conceivable in the circumstances that the shares will not provide sufficient funds to satisfy the wife’s entitlement in which case, the husband should be given 60 days from the point at which the outcome of the share sale is known to come up with the necessary shortfall failing which, the Isreali property should be sold.
In my view, that is a just and equitable outcome for both parties.

I certify that the preceding One Hundred and Twenty Four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 18 January 2017.

Associate:

Date: 18 January 2017