Artinos & Artinos

Case [2022] FedCFamC1F 221

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Artinos & Artinos [2022] FedCFamC1F 221

File number(s): MLC 4132 of 2020
Judgment of: STRUM J
Date of judgment: 7 April 2022
Catchwords: FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the wife sought orders in relation to disclosure, payment of mortgage, and litigation funding – Where the wife sought an order for costs pursuant to section 117 or an order for partial property settlement pursuant to s 79 – Where an order for partial property settlement was made pursuant to s 79.
Legislation:

Evidence Act 1995 (Cth) ss 75, 76

Family Law Act 1975 (Cth) ss 79, 80(1)(h), 117

Federal Circuit and Family Court of Australia Act 2021 s 67

Income Tax Assessment Act 1936 (Cth) Div 7A

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 1.04, 1.31, 2.18, 6.01, 6.02, 6.03, 6.06, 6.09, 6.17, 6.18
Cases cited:

Atkins & Hunt and Ors (2018) 57 Fam LR 128; [2018] FamCA 14

Bearup & Bearup (1993) FLC 92-412; [1993] FamCA 72

Bing & Bing (2007) FLC 93-318; [2007] FamCA 418

Black & Kellner (1992) FLC 92-287; [1992] FamCA 2

Breen & Breen (1990) 65 ALJR 195

Chorn v Hopkins (2004) FLC 93-204; [2004] FamCA 633

Esdale & Schenk (2012) 46 Fam LR 547; [2012] FamCA 111

Lao & Zeng [2021] FedCFamC1A 17

Molier & Van Wyk (1980) FLC 90-911; [1980] FamCA 85

Oriolo & Oriolo (1985) FLC 91-653; [1985] FamCA 54

Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578

Parker v Parker (1992) 16 Fam LR 458

Prantage & Prantage (2013) FLC 93-544; [2013] FamCAFC 105

Quayle v Perceval [2018] FamCA 664

Re JJT: Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44

Salvage & Fosse (2020) FLC 93-966; [2020] FamCAFC 144

Selena & Montez and Ors [2017] FamCA 583

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2011] FamCAFC 126

Verdon v Verdon [2020] FamCA 824

Weir & Weir (1993) FLC 92-338; [1992] FamCA 69

Zschokke & Zschokke (1996) FLC 92-693; [1996] FamCA 79
Division: Division 1 First Instance
Number of paragraphs: 164
Date of last submission/s: 10 February 2022
Date of hearing: 3, 4 and 10 February 2022
Place: Melbourne
Counsel for the Applicant: Ms Stoikovska SC with Mr Newland of Counsel
Solicitor for the Applicant: Blackwood Family Lawyers
Counsel for the Respondent: Mr North SC
Solicitor for the Respondent: Belleli King and Associates

ORDERS

MLC 4132 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS ARTINOS

Applicant
AND:

MR ARTINOS

Respondent

ORDER MADE BY:

STRUM J

DATE OF ORDER:

7 APRIL 2022

THE COURT ORDERS THAT:

1.In addition to paragraph 6 of the Orders made on 3 December 2021, within 14 days, the husband provide to the wife copies of all documents within his possession or control relating to the issues raised in paragraphs 4 – 13 (inclusive) of the wife’s Application in a Proceeding filed 1 December 2021, which have…

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AGLC
Artinos & Artinos [2022] FedCFamC1F 221
Case
[2022] FedCFamC1F 221
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was called upon to make orders in relation to the separation of Mr and Mrs Artinos. The wife sought orders in relation to disclosure, payment of mortgage, and litigation funding, as well as an order for costs under section 117 or an order for partial property settlement under section 79. The court was required to consider the wife's claims and determine whether to grant the orders sought. The court found that the husband had breached an undertaking given to the court and that he had incorporated a new company without providing the required notice to the wife. The court also found that the wife was entitled to a partial property settlement. The court ordered the husband to provide documents relating to the issues raised in the wife's application, make an affidavit containing information and explanations sought in the application, and pay the wife $350,000 as a partial property settlement. The court also ordered the husband to pay the monthly mortgage payments for the former matrimonial home and the outstanding rates and insurance for both the former matrimonial home and the L Property.

In summary, the court found that the husband had breached an undertaking given to the court and that the wife was entitled to a partial property settlement. The court made orders in relation to disclosure, payment of mortgage, and litigation funding, as well as an order for partial property settlement. The wife was also awarded costs of the hearing. The matter was listed for mention before the Honourable Justice Strum on 17 May at 9:30am.

Orders

Orders of the court

MLC 4132 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ARTINOS

Applicant

AND:

MR ARTINOS

Respondent

ORDER MADE BY:

STRUM J

DATE OF ORDER:

7 APRIL 2022

THE COURT ORDERS THAT:

1. In addition to paragraph 6 of the Orders made on 3 December 2021, within 14 days, the husband provide to the wife copies of all documents within his possession or control relating to the issues raised in paragraphs 4 – 13 (inclusive) of the wife’s Application in a Proceeding filed 1 December 2021, which have not been provided to date in electronic form.

2. Within 14 days, the husband make, file and serve an affidavit containing the information and explanations sought in paragraphs 4 - 13 (inclusive) of the wife’s Application in a Proceeding filed 1 December 2021.

3. Upon compliance by the husband with his obligations pursuant to paragraphs 1 – 2 or the expiration of 14 days, whichever is the earlier, he file and serve an undertaking by him pursuant to rule 6.02(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

4. Within 14 days, the parties jointly instruct the single expert, Mr H, of T Accountants, to value:

(a) F Pty Ltd;

(b) the husband’s interest in F Pty Ltd;

(c) the C Group on the alternative bases that it includes:

(i) only the husband’s interest in F Pty Ltd; and

(ii) the whole of F Pty Ltd -

and the husband pay the costs of valuing F Pty Ltd in the first instance, with the ultimate liability therefor to be determined at trial.

5. By way of partial property settlement, within 14 days, the husband pay or cause to be paid to the wife the sum of $350,000.

6. To facilitate compliance with paragraph 3 of the orders dated 15 May 2020, the husband pay:

(a) The monthly mortgage payments for the property situated at J Street, Suburb Q (“former matrimonial home”) as directed by Westpac Bank from time to time, currently estimated by Westpac Bank to be $6,020 per month.

(b) Within 72 hours of the date of these orders, the wife provide to the husband copies of invoices for the outstanding rates and insurance with respect to the former matrimonial home and with respect to the property situate at K Street, Suburb L, and within 72 hours of the wife providing such invoices to the husband, the husband pay to the wife in bank account number ending …14, the total value of the outstanding invoices (estimated at approximately $17,637) and forthwith, the wife attend to payment of the invoices and will provide evidence of payment.

7. All extant interim applications of the husband and the wife, including for the orders sought in their respective minutes of proposed orders at the hearing on 3, 4 and 10 February 2022 be otherwise dismissed.

8. All questions of costs of and in relation to the hearing on 3, 4 and 10 February 2022 be reserved to trial.

9. There be certification for Counsel, including Senior Counsel.

10. The matter be listed for mention before the Honourable Justice Strum on 17 May at 9:30am.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The matter was initially listed before me for a one-day interim defended hearing on 3 February 2022. However, due to the length of the submissions, it was adjourned part-heard to 4 February 2022, and again to 10 February 2022.BACKGROUND The applicant wife, Ms Artinos, was born in 1978 and is presently 43 years of age. The respondent husband, Mr Artinos, was born in 1977 and is presently 45 years of age. The parties commenced cohabitation in or about 2003, married later that year, and separated on a final basis some 16 years later, in 2019. More particularly, they separated under the one roof in June 2019 and the husband vacated the former matrimonial home in September of that year. There are two children of the marriage, X born in 2008 and aged 14, and Y born in 2011 and aged 10 (“the children”). Pursuant to an agreement between the parties, the children live with both parents equally, on a week about basis. At the commencement of cohabitation, the husband was employed by P Company. In 2008, the parties established G Company, a business conducted through a number of companies and trusts, collectively known as the C Group. The primary entity within the group has been C Pty Ltd. It is broadly common ground that the husband was primarily responsible for the business and that the wife was primary responsible for their children and home, although each deposes to some degree of involvement in the other party’s primary sphere of responsibility. The parties constructed a property in Suburb L (“the L Property”) in 2008 and they purchased the former matrimonial home in Suburb Q in 2017, in which the wife and children (when living with her) continue to live. In September 2020, more than a year after the parties separated, F Pty Ltd (“F Company”) was incorporated. The husband is the sole director thereof and the shareholders are B Pty Ltd (a company associated with Mr O, a senior manager within the C Group) as to 45 per cent, D Pty Ltd as to 20 or 25 per cent, and the husband as to 30 or 35 per cent. He has advised one thing but the ASIC records suggest otherwise. The reason for the uncertainty is unclear and cannot be resolved at this interlocutory stage; however, nothing turns on it for present purposes. On either case, he is prima facie a minority shareholder but the sole director. The wife asserts that, by the incorporation of F Company, the husband breached an undertaking given by him to the court on 15 May 2020 that he would “not establish or cause to be established any corporation trust or entity with the purpose of having the same conduct the business of any entity now in ‘the [C Group]’ without first giving [her], by her solicitors, 21 days' notice in writing of an intention so to do.” Further, she asserts (and the husband does not appear to dispute) that she was only given notice of the incorporation of F Company on 23 September 2021 by the husband’s solicitor who advised that this was done “to tender for new work as the ongoing viability of the existing entity (namely [C Pty Ltd]) was became [sic] untenable”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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