Spirallis & Pavlakos
[2022] FedCFamC2F 75
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Spirallis & Pavlakos [2022] FedCFamC2F 75
File number(s): DGC 1820 of 2021 Judgment of: JUDGE BURCHARDT Date of judgment: 28 January 2022 Catchwords: FAMILY LAW – Preliminary ruling on husband’s application to re-open following reservation of judgment- Parenting and property dispute- parenting matters, including time as per the child’s wishes, agreed save for the partner’s application for family therapy – child aged 14 and mature for her years – any compulsion likely to be counter-productive – therapy not ordered.
PROPERTY – Most matters not the subject of disagreement- whether wife’s properties in Greece should be included in the pool – properties gifted to the wife in 1998 when relationship with husband only started in 2005 – court finding properties to be held on trust for daughter and not constituting a resource to the wife – properties excluded from the pool – wife owning unencumbered home at start of relationship – husband having no assets of any moment – husband contributing $350,000 following settlement of injury application – contributions assessed 75/25 in wife’s favour – wife’s lower income and care/ costs of the child assessed as requiring future 2.5 % adjustment in respect of future needs.
Legislation: Family Law Act 1975 (Cth)
Federal Court Rules 2011 (Cth)Cases cited: AFT Pharmaceuticals (AU) Pty Ltd v Reckitt Benckiser (Australia) Pty Ltd (No 2) [2020] FCA 1092
Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
Mallet v Mallet [1984] HCA 21
Re AMIEU [1986] 67 ALR 491
Reid v Brett [2005] VSC 18
Smith v New South Wales Bar Association [1992] 176 CLR 256
Standford & Standford [2012] HCA 52Division: Division 2 Family Law Number of paragraphs: 53 Date of last submission/s: 28 January 2022 Date of hearing: 24, 25, 27, 28 January 2022 Place: Dandenong Counsel for the Applicant: Mr Moisidis Solicitor for the Applicant: Waters Lawyers Counsel for the Respondent: Mr Staindl Solicitor for the Respondent: Clancy And Triado ORDERS
DGC 1820 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SPIRALLIS
Applicant
AND: MR PAVLAKOS
Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
28 JANUARY 2022
THE COURT ORDERS THAT:
1.The matter be adjourned to this Court for mention before Judge Burchardt on 4 February 2022 at 9.30 am.
THE COURT NOTES THAT
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the Final Hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Spirallis & Pavlakos has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Revised from Transcript
JUDGE BURCHARDT
Preliminary Ruling
The Court clearly has power to enable a party to reopen, as the husband in this case seeks to do, till such time as a judgment or order is entered. In AFT Pharmaceuticals (AU) Pty Ltd v Reckitt Benckiser (Australia) Pty Ltd (No 2) [2020] FCA 1092, her Honour Gleeson J, who was at that stage, of course, in the Federal Court, prior to her appointment to the High Court, referred to the express rules in the Federal Court Rules 2011 that provides that:
The Court may vary or set aside a judgment or order before it has been entered.
There is a commensurate rule in this Court's rules.
Her Honour did, however, refer to two aspects of general application. At [7], her Honour referred to the judgment of Kenny J in Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24], in which Kenny J relevantly observed:
In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open.
And at [8], her Honour went on,
In Venus Adult Shops v Fraserside HoldingsLtd (No 2) [2007] FCAFC 41 at [6], French and Kiefel JJ, (as their Honours then were), emphasised the need to exercise the relevant discretions sparingly, saying:
…public interest in the finality of litigation requires no less.
In Smith v New South Wales Bar Association [1992] 176 CLR 256 at 266-267, the plurality of Brennan, Dawson, Toohey and Gaudron JJ relevantly observed:
If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete or one in which reasons for judgment have been delivered. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side.
In Re AMIEU [1986] 67 ALR 491 at 493-494, Toohey J, then a justice of the Federal Court, observed:
In situations where a hearing has concluded but judgment has been reserved and not delivered, it has been said that fresh evidence should be admitted only when it is so material that the interests of justice require it; the evidence if believed would most probably affect the result; the evidence could not by reasonable diligence have been discovered before; and perhaps that no prejudice would ensue to the other party by reason of the introduction of the evidence so late.
Those principles were more recently revisited by Habersberger J in Reid v Brett [2005] VSC 18 at [41], where his Honour observed:
The criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered have been said to be as follows:
(a)the further evidence is so material that the interests of justice require its admission;
(b)the further evidence, if accepted, would most probably affect the result of the case;
(c)the further evidence could not by reasonable diligence have been discovered earlier; and
(d)no prejudice would ensue to the other party by reason of the late admission of the further evidence.
In Smith v New South Wales Bar Association, the High Court of Australia stated that in such a situation it was difficult to see why "the primary consideration should not be that of embarrassment or prejudice to the other side."
I have rehearsed these authorities to explain why, in my respectful view, I am obliged to approach the matter in the light of the observations of Habersberger J, which plainly spring from earlier authority to which I have referred.
So that brings us to the matters to be considered. Firstly, is the further evidence so material that the interests of justice require its admission? Arguably, that is so. It is said that, in addition to $350,000 contributed by the husband, a further sum of about $136,000 or $134,000 was also received and applied in a total pool of $2 million. That might be thought to be a not wholly negligible contribution. Of course, that would be in the event that the husband was able to show that this was indeed a truly separate amount of money and that it was indeed applied to the benefit of the family. So in that sense I am prepared to assume in his favour that there might be some force to that aspect of the criterion, but there are other aspects that weigh heavily against it.
First of all, would it probably affect the result of the case. When one looks at the material I have been forwarded, it is apparent that on 7 November 2016, Slater & Gordon wrote to Super Fund B saying, relevantly:
I refer to previous correspondence and enclose my client's completed, irrevocable authority, application for payment benefit and certified identification.
The irrevocable authority bears some examination. What it says, relevantly, is this:
I, Mr Spirallis, of C Street, Suburb D, have given irrevocable authorisation to my lawyers, Slater & Gordon, of E Street, Suburb F, for my benefit money, representing the successful resolution of my claim for total and permanent disability, to be forwarded directly my lawyer's office at their address specified above.
As I understand it, from what I have been told this morning, Mr Pavlakos had been on WorkCover benefits since 2012 at a reduced level of his total salary. And that assertion sits with my own appreciation of workers compensation law and practice, but it would seem to me very possible that what he got was a total and permanent disability claim. His affidavit says:
In around 2015 to 2016, I injured my spine at work and received a personal injury payout of $350,000.
It's far from clear to me, just looking at this document, that the allegedly additional funds were not part of a claim resolved by way of a total and permanent disability claim. There has been no suggestion in any of the materials filed that the applicant filed a common law proceeding in the County Court, or something of that sort. If there is, obviously there would be widespread need to revisit the materials in that proceeding. But nothing of this order has been mentioned, and one might have expected that it would have been if it was material. So there are some questions - obviously, I cannot make any concluded views as to what this material would or would not do, but it does not immediately emerge to me that it would probably change the outcome.
More particularly, there is no ultimately, clearly identifiable additional benefit, even if it was received. If it was received, it would seem to me, on the materials that have been filed, that it must have just been applied to living expenses in the period from 2016 to 2020. That is a period of four years. And it would obviously be an admirable quality that it was applied to the benefit of the family, but in my view, it would not change the weight so to speak, of the parties' contributions, insofar as they bear upon the ultimate outcome of the proceeding.
As it now stands, there are the various chattels, there is the business, and there is the property, and there is superannuation. There is nothing to suggest that there is any additional ultimate benefit obtained to the parties by this extra sum if it was indeed paid. So that matter militates against granting leave.
The next question is whether with reasonable diligence this material could have been discovered earlier. Given that it was apparently - and accepting in his favour for the moment - apparently the case that he only remembered it after he had given evidence yesterday, and was able to get the documents before close of business, it is quite clear that with reasonable diligence these documents could have been discovered and made available long ago. And as the authorities make clear, that is an important consideration.
That, however, then brings us to the final matter of which we are concerned, namely the prejudice to the wife. As the High Court made clear in Smith this is perhaps a primary matter. Clearly, there would be prejudice to the wife. The matter is concluded, and judgment is imminent. The matter would certainly have to be adjourned. The material is not, as I have indicated, in any way so clear that it could be dealt with by submissions. There would need to be further discovery. It might well be quite ranging, because, of course, in addition to any ancillary and other legal proceedings that, as it were, are now said to have produced $350,000 discretely from the $135,000, there would need to be consideration of discovery of the parties' bank accounts at the relevant times. These are now over six years or so old. That would be forensically difficult. And very likely, in view of my experience with bank records and the like, there would need to be more evidence called, more cross-examination. This would clearly be a significant prejudice to the wife in these circumstances.
The Court's power in these matters is discretionary and, of course, it must be exercised judicially. I have had regard to the various matters I have described. In my view, the proper exercise of my discretion is to refuse the application to reopen and that will be my order.
Parenting and Property Ruling
This is a parenting and property dispute. Despite the vigorous contest, the vast bulk of the facts are agreed. Both parents are of Greek ancestry, a matter relevant to some aspects of their dispute. The wife, whom I should probably refer to as mother from time to time - and the husband, likewise, as father. The wife was born in 1969. The husband was born in 1967. They met in 2005. They commenced cohabitation upon their marriage in 2006.
At the start of the relationship, the wife had a home in C Street, Suburb D that was unencumbered. During the currency of the proceeding, the husband tried to suggest to some extent that there might a debt to the mother's father, but this was not in his affidavits. There is no evidence to support the assertion and it was not put to the wife in cross-examination. She might have given money to her father for any reason. The husband had no significant assets. He may have had several cars.
Their child, X, was born in 2007. The mother continued to work for the TAC from 1998 until 2007, when TAC relocated to Geelong. The wife was paid a $60,000 redundancy payment at the time. The wife did not work between 2007 until 2011 because she was looking after X. She then additionally worked part-time in various businesses from 2011 till 2015 for three days per week. In 2015, she started to work for a restaurant for five days a week. In the affidavit material, it seems that the husband had various jobs, including two unsuccessful business ventures, until November 2012. He then had an injury at work and was in receipt of benefits until about August, or slightly later, 2016. He was certainly paid $350,000, as the parties both agree, later in 2016.
They then bought the restaurant themselves in 2016. They also bought a boat and trailer, an Motor Vehicle 1, and a Motor Vehicle 2. Thereafter, both parents worked hard in the business. The husband appears to have controlled all of the financials and the ordering for the grocery side of the business; the wife appears to have done the front of house and restaurant. The business went well. Turnover in 2018 and 2019 was over $800,000. Even in 2020, the turnover was still $758,000. Totally unsurprisingly, however, in 2021, it was down to $511,000.
In-between, separation occurred in October 2020. The wife says that the husband had an affair, which the husband appeared somewhat to deny, but the wife was clearly convinced that this was the case. Her evidence about this matter was given strongly when she was being cross-examined. The wife ceased work at the restaurant forthwith upon separation but was paid, until the end of 2020, $542 a week out of the business. Since then, apart from one payment on 29 January 2021, the wife has received no payments in respect of the business, and the husband has increased his salary by an amount roughly commensurate with what he was paying her. The wife has more recently taken up work for four days a week with Employer G, and sometimes five, depending on her roster. Her wages are some $750 a week, which I think may be a net figure, as her estimates in her most recent financial statement was $837. She also receives Family Tax Benefit each fortnight.
The husband continues to run the restaurant but says it is performing poorly. It has emerged, however, in his evidence, that he wishes to retain the business.
The wife also owns three properties in Town H in Greece, which were the subject of significant disagreement. The husband pays X's school fees in the sum of $786 per month. He also pays child support of $19 a week. There are ancillary expenses such as $100 per month for X's telephone, which he bought for her.
Leaving aside the properties in Greece, all of what I have just said is essentially uncontroversial.
The first issue is a parenting one relating to X. The mother does not agree that there should be therapy as the father seeks. Her evidence is that things are going well, and that X nominates the time she wants to see her father. The mother said she encourages time, but X is a teenager who wants time with her friends also on weekends. The father's evidence was that he has concerns that he and X have become steadily more distant since separation. He is not seeing her often. He has seen her on Christmas Day, New Year’s Day and one Sunday since, and for three hours or thereabouts on each occasion. He has told X he would like to see her more often but does not want to put pressure on her and make her feel uncomfortable.
He seeks some three sessions of therapy, and then as the therapist might direct. He has nominated through Counsel Ms J and K Counselling as possible providers. And these are, of course, very experienced practitioners. It appears that he thought the mother might be involved in therapy depending on how things went. He is certainly prepared to pay for it. At one point, he seemed to suggest that X needs to work through the sequela of separation, although that is my description of the matter, rather than the words he used. I note that the separation is now over one year ago, though some points can be made.
First of all, it has been agreed that there will be an order for equal shared parental responsibility. Second, it has also been agreed that X spend time with her father in accordance with her wishes. The section 11F report dated 23 August 2021 observed at paragraphs 18-22, which I will read out:
18.In relation to the relationship with her father she stated that it was ‘going ok I guess’ although that she found it difficult to explain. She said that when she tried to tell her father something he would forget and she would have to remind him of the conversation a number of times. X stated that there were occasions whereby she would tell him she would come and see him after school, however he would not be there. She discussed that after her parents separated there was limited discussion about spending time with her father and that between her parents it was agreed she would spend Sundays with him.
19.X expressed that in spending future time with her father she wanted it to be in line with her wishes and that she would continue to see him even without a formal arrangement. She stated that she enjoyed spending the majority of time with her friends on a weekend (when not in Lockdown) and that seeing her father every Sunday made her feel she was unable to do this and this annoyed her as she was unable to see them. She also stated that having a set time each Sunday was stressful as she had to complete any homework on the Saturday prior to seeing her father. X stated that she did not want to spend overnight time at her father’s home at this stage and that she did not feel comfortable with this, however stated there was no particular reason why.
20.X discussed that her mother continued to encourage her to spend time with her father and that she wanted her to maintain a relationship with him. She discussed that she had a good relationship with her father prior to the separation and that they did a lot of things together.
21.X reported that at the time of her parent’s separation she felt overwhelmed and sad. She stated that she had a ‘bad feeling’ on the day it happened and that her mother had broken down and became upset leading up to this. She identified that the separation had affected her mother greatly. X stated she was now used to her parents living separately and if she ever needed to talk to someone she could with her best friend, which helped a lot.
22.When the writer asked X if there was anything else she wanted to discuss she raised that at times she was scared of her father’s reaction and that he would ‘tell me off.’ She stated that on her birthday after asking that he take her home early after spending time with him as she was going out with her mother he became upset and angry with her. (This incident was discussed with the father during his interview. Whilst he stated his reaction was associated with his frustration at the mother and him not being informed of these plans prior to their time together, he acknowledged X’s feelings and showed insight to how this may have affected her).
I note that X is described by everybody as a thoughtful and mature girl for her years. In my view, X is old enough to make the decision herself. This is indeed implicit in the orders that are agreed. Any attempt to coerce X in any fashion, even as to therapy, is highly likely to be counterproductive. I note that X is very close to her mother who has always been a primary carer. It would seem far more probable than otherwise that she is aware of the mother's views as to why separation took place. The mother did not impress me as being overly restrained when she was giving evidence. It speaks well of X's maturity that, notwithstanding this very probable negative, she is still prepared to and desires to keep her relationship with her father. In the end, in my view, as I say, she is old enough to decide and indeed has already done so. I will not order the therapy that the father seeks.
That brings us to property issues. Pursuant to Standford & Standford [2012] HCA 52, the Court's first task is to ascertain the legal and equitable interests of the parties and determine if an adjustment for property interest is just and equitable. Here, however, as was indeed foreshadowed in Standford, the basis upon which the parties conducted their finances during their relationship has been fundamentally and radically altered. Both sides seek that there be a property adjustment; albeit not in identical terms. It is clearly just and equitable that there be an adjustment.
This brings us to the pool. Most of it is agreed. The former matrimonial home is agreed to have a value of $1,770,000. The wife's NAB term deposit is $10,200. And as I understand it, constitutes the remnants of the $60,000 received in 2007. It is agreed that a further $19,000 add-back should also take place.
The other bank accounts the parties have are trivial. But they are agreed. And it is also clear - and this is very much to Counsel for the husband's credit - that he has now conceded that the wife's bank account is Greece is worth, effectively, nothing. This was a matter in issue perhaps at the start but was not pressed and in my view wisely so. The Motor Vehicle 2 has an agreed value of $12,600. The Motor Vehicle 3 has an agreed value of $5,600. The Motor Vehicle 1 has an agreed value of $27,500. The boat is agreed at $15,000. The trailer is agreed at $3,000. A number of liabilities are also agreed. The ATO superannuation debt is $26,093. The Centrelink overpayment is $6,264. The ATO trust debt - if I may so describe it - is $88,550. The husband's personal tax debt is $7,960. The wife's personal tax debt is $1,740. And the wife's Visa debt is $10,000.
So far as superannuation is concerned, the wife's defined benefit superannuation is $63,510. The separate accumulation fund is $6,987. And the husband's is $8,617. I note as Counsel pointed out today that that may well be because he realised it in 2016. There is some measure of dispute as to what should occur in relation to superannuation.
The disputed items - we start with the properties in Greece. The wife called a Greek lawyer, Mr L. He struck me as being clearly partisan. He was endeavouring to craft his answers to fit the wife's case at every point. But the fact is he is a qualified lawyer, and, in the end, I accept that the land tax documents which Mr L gave evidence about do indeed give the best evidence the Court has available to it as to what these three properties are worth and I adopt those values.
But contrary to the position put in correspondence by the husband's solicitors, the value of the properties in my view is not relevant. The evidence about these properties, in my view, was compelling. It is of course correct that the wife did not disclose these properties in her first financial statement or affidavit, albeit that the husband knew about the house anyway. He had stayed there on his honeymoon. Paragraphs 44-47 of her trial affidavit the wife deposed as follows:
43.In 1998, I was gifted three parcels of land in Town H, Greece from my parents. These properties were given by way of Parental Grant..
And she annexed a copy of it.
44.The properties in Greece hold a collective value of around € 40,000. These properties have been held in my family for generations. There are two vacant farming lots and a unit in the town of Town H.
Once again, she annexed her market appraisals of the properties.
45.Town H is a small island village. It is not a tourist destination. The two vacant farming lots are leased to my cousin for €300 each year. I do not lease the unit, it is used by my family when they visit Greece.
46.I do not make any financial contributions to the properties, there is small shortfall for the Greek property taxes each year which my father pays. Mr Pavlakos does not make any financial contributions to the properties.
47.I will gift these properties to X when I am able.
MM7 is the parental grant, and it shows that the transfer did indeed take place in 1998, many years before the wife even met the husband. Under cross-examination, the wife conceded that the properties were not in her first affidavit or financial statement. She said they were an inheritance before the marriage. She said the parties had indeed passed from generation to generation within her family. She did not think that overseas properties were included. They were passed on from her mother to her. She denied roundly telling the husband the properties were worth 85,000 euros some two to three years ago. She clarified the nature of the properties; the house and the property of some four or five acres are in or at the edges, one would assume, of the village. And the other one acre is further away. Her cousin uses the land for grazing. The house is not leased. Her parents, her brother, and herself use it when they visit. She described it as a holiday home. In response to questions from the Court, the wife confirmed she will pass the properties on to her daughter; she will not sell them. The husband in cross-examination conceded that the wife wants to keep the properties for X. He said they discussed it many times. And he agreed that the house was not rented.
It is of course true, as Counsel pointed out yesterday, that there is no formal evidence that the wife will not encumber the properties in Greece. But the tenor of her evidence in my view was clear and overwhelming; she holds these properties, in effect, on trust for X. This is the substantive position whether the wife herself would put it that way or not. Whether the trust was an express one - which it may well have been, but there is no evidence - or a common intention constructive trust as would clearly be construed given these facts is immaterial. It's clear the wife holds these properties for the daughter. She does not see them as hers to sell or deal with. And they should simply not be included in the pool accordingly. I point out that, in any event, they were owned by the wife from 1998 onwards. The husband has not made any contribution to them in anyway and they could be excluded on that basis also. And as I say, they do not form, in my view, a future resource. There is no meaningful rental of the land and there is no intention to do anything with the properties. And further, and in any event, they would amount at most to something a bit under three per cent of the pool.
Another area of disagreement is the add-back to be attributed to the husband. It is agreed that $2,000 was advanced from the business and this should be added back. His evidence is that the rest of such monies as he had paid on legal costs came from his earnings, but these have only come from the business. His evidence was just a guess. In these uncertain circumstances and given that I think it was conceded that another $2,000 was paid, I will round off the husband's add-back at $4,000.
The debt of the business to Mr M in the sum of $19,950 was opposed but I understand is now agreed. I point out, clearly, almost all of it was accrued while the wife was directly involved in the business and it would be included in any event. The so-called Company N costs are current operating costs which is agreed should be removed.
The next matter in issue is the value of the business. The wife attributes the $265,000 on the basis of Mr M's report. The report was provided to the husband's solicitors in November 2021 and no meaningful steps were plainly taken to obtain any kind of alternate report. The husband's Counsel at one point appeared to accept that the $265,000 would be acceptable, provided the business debts were included. In final submissions, it was submitted that Mr M's evidence was unsatisfactory. I accept that in some respects, Mr M did stumble once or twice. But overall, he was a convincing expert. His evidence is what the Court has. I note that he was not provided some of the documents he requested. I found his evidence, taken as a whole, convincing. I accept the value of $265,000, but the debts, as I say, will be included.
That brings us to the question of contributions. The husband says there should be a 15 per cent adjustment under contributions and no adjustment as to future needs. I will come back to future needs. I am sure Counsel did not mean it in quite that way because, of course, it is not a question of an adjustment. The Court does not start its presumption at fifty-fifty and adjust, rather it assesses the contributions globally.
Here, first, the wife had a house which was unencumbered at the start. As I have already indicated, there was some quibbles by the husband in cross-examination, but for the reasons I have expressed, these are not quibbles I am prepared to give any weight to. The wife plainly had an unencumbered property. Its value has, of course, increased significantly. But as her Counsel puts it, if the wife had not owned it in the start, there would be nothing to increase. In this regard, it is noteworthy that at the start of the relationship, the husband was 41 and the wife was 37. She owned an unencumbered home and he had nothing of any real moment as to property - certainly no real property and his chattels were relatively limited.
Clearly, by the age of 41, which would have shown that he was not, in fact, very good at saving - the likelihood that he would ever save substantially in succeeding years would seem open to serious questions given that history. Likewise, even if the Greek properties were included as they are three per cent of the pool, they would have had no value if the wife had not owned them in the first place. Now, the husband did put in $350,000 which gave rise to the business, boat, trailer and two cars, which I note taken together comes to $63,700. The wife also put in $60,000 of which $30,000 roughly was applied to the family's benefit over time. As I have indicated, the remainder was spent on costs.
So far as contributions in a more general sense are concerned, in my view, it is clear that both did their best. The wife plainly did the housework. The husband may well have helped somewhat with improvements. The wife worked throughout except the period 2007 to 2011. The husband was on work cover from 2012 to 2016 and had two earlier unsuccessful business efforts. I do not propose to endeavour to put a precise percentage on it, but in a general way, it would seem to me more probable than not that the wife's contributions in a non-specific sense may have been slightly greater. But it is important to remember that the High Court has said in the case of Mallet v Mallet [1984] HCA 21 that a homemaker's contribution should not be assessed in a tokenistic way. On the same line of reasoning, the husband's contributions as an earner and the provider of the consortium of marriage, cannot be set at nought.
Overall, it is a matter of calibrating all these matters together to produce the holistic result encouraged by both the Act and the authorities. I would assess the contributions in these circumstances, bearing in mind the matters I have referred to, as being 75/25 in favour of the wife.
That brings us to the question of future needs. Neither party has major earnings. The husband appears to earn around about $65,000 per year. But when COVID is over, that might be thought likely to increase. The wife has the $750 to which I refer which in round terms is $39,000 a year. She has to provide for herself and X at least for the next three and a-half years. And in respect of X, probably somewhat more. The husband, however, has to pay rent. Who is to say whether at the end of this proceeding he may or may not be able to purchase somewhere to live.
He is going to pay school fees as I find and that is greatly to his credit. And it is a lot of money. But it should be noted that while that and the other expenses he pays are entirely meritorious, it does not actually give the wife any more to spend on food, transport, paying her bills and the like. As I understand it, the wife's health is unexceptional. The husband has an injury to a disc in his neck and I accept that he is in pain all the time. I also accept that his opportunity for other work is reduced. But the fact is that he has had the business for five years and even in 2020 and 2021, the turnover was over half a million dollars. Mr M had it that there was some anomalies in the operating figures, if I can so describe them, including the possibility of under disclosure of income. I note that the $80,000 tax debt followed an audit.
One has to approach, however, any suppositions along those lines with very considerable care. And I should make it clear that while they are, as it were, floating around in the ether, I have not in any sense adjusted the percentages because of them. In my view, a loading of 2.5 per cent to the wife is appropriate because of her lower income and the additional expenses of X, even though she owns her house.
This brings us to superannuation, which I will deal with separately, although it is included in the pool. I have been informed that the wife's defined benefit was $30,000 at the start. I should emphasise both parties agree superannuation should be included in the pool, although they have different positions as to what should come out of it.
Once again, there would be nothing if the wife did not have this at the start. In my view, the assessment is the same. It should be 75/25 of that part of the superannuation. Twenty-five per cent of $63,510 is $15,877. The other superannuation the parties hold is only different as to $1,600 in favour of the husband. I am going to order a superannuation split over the defined benefit sum of $15,000 in favour of the husband.
The next question is how to give effect to these conclusions. Having added up the revised totals, the total pool including superannuation is $2,055,880. Twenty-two and a-half per cent to the husband is $462,573. If you take off the boat and the cars, which total $63,700, the total is $398,873. If you take off the superannuation, being $15,000 split plus his extant funds of $8,617 and a total of $23,617, the result in total is $375,256. If you take off the business at $265,000, the resulting figure is $110,256. And if you take off the costs addback of $4,000 and his bank account at $1,590, the total is $104,666.
But the wife has to pay half of the joint debts. The Centrelink overpayment is $6,264, of which half is $3,132, producing a total of $107,798. Half of Mr M $19,950 is $9,975, producing a total of $117,773. Half of the ATO business debt of $88,550 is $44,275, producing a total of $162,048. Half of the $26,093 superannuation payments that can be made is $13,046, which produces a total payable by the wife to the husband of $175,094. I do expect Counsel to have necessarily been able to note those figures down as I went through. And I am going to forward to you a revised version of the asset and liability schedule provided by the husband, which is now in my handwriting entitled Judge's. That will show how the figures come to pass.
I will also forward to you the draft orders which include the $175,094 order. And include the revisions to the order 18 in relation to the trust that Counsel for the husband set out yesterday. There will also, I think, need to be a separate superannuation splitting order which the parties will need to attend to. I do not expect to make final orders until the parties have had a proper opportunity to check all the arithmetic. I am going to cause these reasons for judgment to be made available on a one day turnaround basis, which normally gets them back pretty quickly. I will then forward them to you once I have made the usual permitted corrections of my various mistakes of an ex tempore judgment. Hopefully, on Monday, I will provisionally list the matter for Friday at 9.30 am. And if the parties are able to confer and find that all the sums are as I say they are and that the orders correctly reflect my conclusions, they need only inform my chambers. And we will vacate that hearing and not put the parties to the additional expense.
I do not need to hear from you, Mr Staindl. The wife seeks costs occasioned by the application to reopen in the sum of $3,000. The parties would have had to attend today in any event. The amount of additional work involved would not in my view have been enormous. And furthermore, while the application was unsuccessful, it was in no way devoid of any prospects of success. In my view, the proper exercise of my discretion is that those costs should lie where they fall. Yes. Thank you both. Formally, I adjourn the matter to 9.30 next week.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 1 February 2022
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