Tennakoon & Fonseka

[2021] FCCA 1567

FEDERAL CIRCUIT COURT OF AUSTRALIA

Tennakoon & Fonseka [2021] FCCA 1567

File number(s):

MLC 957 of 2019

Judgment of:

JUDGE BURCHARDT

Date of judgment:

22 July 2021

Catchwords:

FAMILY LAW – Property dispute following lengthy marriage in which parties had nothing at the start – matter complicated by major valuation disputes in respect of the husband’s business interests – none of the three experts’ evidence able to be accepted – disputes over date of separation resulting from wife’s endeavours to distance herself from unsuccessful initiatives by the husband later in the marriage – contribution assessed 55/45 in husband’s favour – husband businessman of great energy and business acumen – wife’s role as homemaker – court adopting lowest possible value for husband’s businesses notwithstanding likely future profitability – court adjusting outcome pursuant to s.75(2)(o) of the Family Law Act in light of probable future profitability of husband’s businesses.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Stanford v Stanford [2012] HCA 52

In the Marriage of, Re Mallet [1984] HCA 21

Number of paragraphs:

192

Date of hearing:

10, 11, 12, 18 and 21 May 2021

Place:

Dandenong

Counsel for the First Applicant:

Ms Paull

Counsel for the First Respondent:

Mr Robinson

ORDERS

MLC 957 of 2019

BETWEEN:

MS TENNAKOON

Applicant

AND:

MR FONSEKA

Respondent

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	22 JULY 2021

DRAFT FINAL ORDERS

THE COURT ORDERS THAT:

1.The husband pay the wife $130,000 within 90 days.

2.The wife retain to the exclusion of the husband:

(a)B Street, Suburb C, VIC;

(b)D Street, Suburb E, VIC; and

(c)F Street, City G, H Province, Sri Lanka.

3.The husband do all things necessary to transfer the ownership of the Motor Vehicle 1 driven by the wife to her name, at the wife’s expense.

4.The husband do all things necessary to transfer the properties if not already in the wife’s sole name, as listed in order 2, into the wife’s name, at the husband’s expense.

5.The husband retain to the exclusion of the wife:

(a)J Street, Suburb K;

(b)L Street, Suburb M;

(c)Vehicles, plant and equipment in relation to N Group;

(d)Fonseka Family Trust;

(e)O Pty Ltd;

(f)P Pty Ltd;

(g)Q Family Trust; and

(h)R Pty Ltd.

6.The husband do all things necessary to remove the wife’s name from any of the entities, companies and trusts as listed in paragraph 4 at his expense.

7.The husband shall indemnify the wife from any liabilities, debts, or encumbrances in relation to:

(a)Fonseka Family Trust;

(b)O Pty Ltd;

(c)N Group Pty Ltd;

(d)P Pty Ltd Pty Ltd;

(e)Q Family Trust; and

(f)R Pty Ltd;

(g)Or any other companies, entities or trusts in either parties’ name.

8.The following orders are binding on Super Fund S as trustee (“the Trustee”) the Trustee of the Super Fund S (“the Fund”):

(a)The base amount allocated to the Applicant out of the interest of the Respondent in the Fund is $X.

(b)Pursuant to section 90XT(1)(a) of the Act whenever a splittable payment becomes payable in respect of the interest of the Respondent in the Fund, the Applicant is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount, and there be a corresponding reduction in entitlement of the Respondent;

(c)The operative time for this order is four (4) clear business days after the date of service of these orders on the Trustee of the Fund;

(d)Until such time as the superannuation split to the Applicant pursuant to these orders can be rolled over into separate account to the Applicant:

(i)The Respondent will direct and authorise the Trustee of the Fund to communicate with the Applicant and/or any other person authorised by them in writing:

A.To answer any reasonable enquiries as may be made by her or on her behalf from time-to-time regarding her entitlement in the Fund; and

B.To give the Applicant and/or her authorised representative a copy of any notice of any application or request by the Respondent which seeks release of entitlements in the Fund in so far as that release may affect the Applicant’s entitlement in the Fund pursuant to these orders; and

(ii)The Respondent, his servants and/or agents be and are hereby restrained form doing any act or thing which would prevent the Applicant, or her legal representative from receiving the benefits in the Fund to which they are entitled pursuant to these orders;

(e)In the event that the superannuation split to the Applicant pursuant to these orders can be rolled over into a separate account to the Applicant, each of the parties will do all such acts and things and execute all such documents as may be necessary to facilitate and implement that rollover;

(f)There be liberty to each party and the Trustee of the Fund to apply regarding the implementation of these orders affecting the interests of the Applicant and Respondent in the fund.

9.Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

(a)Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) owned by or in the possession of such party as at the date of these orders including but not limited to any jewellery, furniture, furnishings, shares and motor vehicles;

(b)Monies standing to the credit of the parties in any joint bank accounts are to be transferred to the wife and the parties do all acts and sign all documents necessary to close any such accounts;

(c)Each party is solely liable for and indemnifies the other against any credit card debts, personal loans and debts of whatsoever nature and kind in that party’s name;

(d)Insurance policies remain the sole property of the owner named therein;

(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

10.The parties do all acts and things necessary to give effect to these orders.

The parties have liberty to apply in respect of compliance with these orders.

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 under the pseudonym Tennakoon & Fonseka is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

INTRODUCTION

1. This is a property dispute between a couple who were married in 1990 and separated either in 2015 or 2018, depending on whose version you accept.  The parties had nothing of any moment when they first met in Sri Lanka all those years ago, and now own properties worth millions of dollars.  Given that the children of the relationship are now adult, one might have thought that the parameters of this dispute would be relatively easy to define and determine.  But that is not at all the way it has worked out. 

2. There has been battle on a Homeric scale about what should be taken to be the property pool for division, and in the end the vast bulk of this dispute has been the valuation of the husband’s business interests.  There have been no fewer than three expert reports, none of which have really agreed with one another at all.  It is no surprise that the wife’s valuations have sought to increase the value of the businesses and those of the husband to diminish it. 

3. The wife nominally seeks a 60/40 division in her favour and the husband an equal distribution.  This is not the true position, however.  Each of them in effect seeks to either take all the real property (wife’s position) or to saddle the wife with as much debt of the business as possible (husband’s position). 

4. For the reasons that follow, I am unable to allot any exact value to the husband’s businesses.  While they may be in the ultimate of very considerable value, they may be of very little.  I am however going to determine the matter as best I can now.  The wife will receive 65 per cent of the pool as I have determined it and the husband 35 per cent.

   AGREED OR UNCONTROVERSIAL MATTERS

5. The wife was born in 1962, and the husband was born in 1965.  They met in 1989 when they were both working at a company in Sri Lanka, and married, as earlier indicated, in 1990.  They came to Australia in 1992, and their children, Mr T, born in 1992, and U, born in 2001, followed.  In 1995, they bought the matrimonial home at B Street, Suburb C, where the wife still lives.  The wife worked from late 1995 to 2000 in a business, but stopped work completely when Ms U was born in 2001.  She does not speak functional English or anything remotely approaching it, and has not worked since. 

6. The husband has worked long and hard in his various businesses.  He commenced a transport business in 2001 but had to dispose of a transport business in 2006 in circumstances to which it will be necessary to return. 

7. The husband’s business interests have continued to expand, and in 2016 he took out a very lengthy lease on the Apartments Building V in City W for which he paid $2,100,000 and for which he gave collateralised security both in the form of a personal guarantee and over property at J Street, Suburb K, to which once again it will be necessary to return. 

8. The wife says separation under one roof took place in 2015, and the husband says separation took place in 2018.  This dispute is of significance given that the husband in those intervening years made a number of business decisions including the Apartments Building V purchase, if I may so describe it, and investments in films in Sri Lanka.  These are also the subject of disagreement.

9. At separation, the husband moved out and moved into a property at J Street, Suburb K (“J Street, Suburb K”), where he continues to reside.  The son, Mr T, worked for his businesses for some time but was eventually dismissed.  Mr T was living at the former matrimonial home with his wife, but they have moved out (it appears possibly following a disagreement between the wife and the daughter-in-law), and the daughter has recently returned to live full time with the mother at their property.  Ms U, it appears, is a student who makes no financial contribution to the expenses of the household.  The wife has subsisted for some considerable period of time on interim spousal payments made by the husband pursuant to court order (itself the subject of significant disagreement) and proceeds of sale of a property also sold following a curial determination. Interim distributions have advanced both parties substantial amounts of money in excess of $300,000.  

   THE PARTIES’ AFFIDAVITS

10. Much of what the parties have put in their all-too-voluminous affidavits is, in fact, contained in the above section.  I have, of course, read the parties’ affidavit materials in their entirety and carefully, and what follows is a paraphrase that concentrates on those aspects of this evidence that I think are worthy of comment. 

11. In the wife’s first affidavit, filed 30 January 2019, at paragraph 10, under the heading Family Violence Matters, the wife deposed:

    “Throughout our relationship, the Respondent has been very abusive in a physical, emotional and verbal manner.  Over the years there are numerous incidents where the Respondent has started arguments with me, yelled at me and blamed me for things.  There are too many incidents to list here.”

12. The affidavit goes on to detail an argument in late 1995, an assault by the husband in 2005 following which the wife and the children left the matrimonial home and were placed in protective services for approximately two to three weeks (although the wife gave him another chance), and alleged assaults on Mr T when Mr T was a child.  Otherwise, the matters complained of, while thoroughly unpleasant, do not appear to rise higher than the constant calling by the husband of the wife in obscene terms such as “slut”, “whore”, “bitch” and “daughter of a slut”. 

13. The affidavit asserted at paragraph 19 that on or around April 2015 the parties “officially separated”, although they continued to live under the same roof.  The wife deposed that they slept in separate bedrooms and did not communicate with each other in any way, although she would cook dinner for the household, which the husband sometimes ate.  She deposed that during 2017 the respondent began doing business in City W and would come back and forth without providing any explanation.  She deposed that during the relationship the husband always controlled the parties’ finances and gave her a monthly allowance of $400, eventually increased to $500. 

14. She also deposed at paragraph 31:

    “I am aware that there is a very large sum of cash in a safe, at one of the business properties.”

15. In his responding affidavit filed 4 March 2019, the husband took issue with the wife’s assertion as to his good health.  He deposed to suffering from type 2 diabetes and high blood pressure, for which he takes medication, and to suffering considerable degrees of stress.  He put the date of separation as the date of 10 December 2018, when an Intervention Order was taken out against him while he was on an extended work trip in Queensland.  He deposed to having worked extremely hard since the parties came to Australia and had, in fact, worked three jobs for some years.  He deposed to starting his transport business, O Pty Ltd, in 2001.  He deposed to a further company of his, P Pty Ltd, owning the property at J Street, Suburb K worth approximately $700,000.  He deposed that the business assets of the business were owned by O Pty Ltd and deposed that the wife had not worked since 2001.  He deposed to buying Mr T a sports car for his 21^st birthday, which was then written off but was still said to have a valuation of $30,000.  He denied separating in 2015 and deposed that the parties continued to travel together and to go out together as a family, including a number of overseas trips. 

16. In paragraph 29 he deposed:

    “In 2016, at the wife’s request I entered into a contract with Company X in Sri Lanka to purchase a holiday unit for her use there.  I paid a deposit of approximately $5,000 with approximately $85,000 remaining to be paid.  I have received written and telephonic demands for further progress payments and I am contractually bound to pay them.”

17. He went on to depose that a dispute about Mr T’s choice of wife was, in fact, the matter that led to separation.  He deposed that O Pty Ltd had been in decline for several years.  He also deposed, however, to having purchased in 2016 a serviced apartment investment in City W known as Apartments Building V, which he operates through R Pty Ltd (“R Pty Ltd”), consisting of 41 rooms.  He borrowed $2,150,000, of which he deposed $1,882,000 remained outstanding.  He deposed to a considerable decline in bookings as a result of COVID-19 and a devaluation of the business as a result. 

18. The husband also went on to depose to having invested in a Sri Lankan-made TV drama through the trading name N Group, and that the series had been partially completed.  He deposed to being required to pay another $480,000 to complete his contractual obligations, but that until the series was complete, the venture had no value.  He went on to depose to having entered into a contract to invest in a movie contract that required a payment of $733,000, which was speculative.  He deposed to an income through O Pty Ltd director’s fees at the rate of $55,000, but at that time was paying his son Mr T a salary of $130,000 per annum.  The parties’ three joint bank accounts had balances of $133,000, $47,000 and $12,000 respectively, to which he deposed the wife had access. 

19. This affidavit responded to the wife’s affidavit and, perhaps unsurprisingly, he denied all allegations of abuse or physical violence.  He denied being controlling in relation to the parties’ finances and deposed that the wife was at least generally aware of their financial circumstances.  He also raised an issue of a Motor Vehicle 1 driven by the wife worth approximately $90,000, and to a Motor Vehicle 2 in her name worth approximately $12,000, both of which could be sold.  He went on to depose that the parties have saved up to $70,000 in cash over a period of years, but that this was in the safe in the house, to which the wife had the keys.  He also deposed to the wife having jewellery worth $80,000 and also a property in Sri Lanka.  

20. The wife’s next affidavit, filed 7 April 2020, deposed to struggles with her mental health.  She deposed to a final Intervention Order being entered into on 21 August 2019, without admissions, and to the fact that the husband had cut off the gas and electricity and internet connection in December 2018.  He had also ceased paying her the $500 a month.  She deposed to receiving $53,728 in March 2019 when one of the joint accounts was split equally after deduction of school fees.  She deposed that (paragraph 18):

    “…  This money was spent on daily living expenses for myself and my two children.  However, for the past 3 months, we have no money left in this account and we have had to put majority of expenses on my credit card.”

21. Given that three months before this affidavit would take one back to January 2020, it would seem that the wife had dissipated over $50,000 in nine months, which seems somewhat

    
    

    self-indulgent in the circumstances.

22. I note that at “-5” the wife annexed a medical certificate from her General Practitioner asserting that she had been diagnosed with anxiety/depression and had been having psychological sessions monthly with her Psychologist. 

23. In her next affidavit, filed 23 July 2020, the wife deposed to having received $40,000 pursuant to court order made on 9 April 2020, at which time the husband was given $20,000.  She deposed that at that date she had $13,000 worth of personal expenses, which I presume were debts, and that she had used the remainder of the funds on day-to-day expenses and had still $25,000 in legal bills owing.  She estimated a relatively small amount in her bank account in Sri Lanka.  I note that Mr T’s employment with the father had ended in 2019.  She went on to say that the parties’ lifestyle was extravagant and they did go on many overseas trips and stayed at expensive hotels during the marriage. 

24. She deposed that her current weekly expenses were approximately $2,259 and that she might not have enough without spousal maintenance.  She noted that Mr T was buying a second new sports car which, like the one he had written off, she said should not be included in the property pool. 

25. The balance of the affidavit relates to concerns with the valuation undertaken by Y Valuations, to which I will return, and a description of the husband’s business activities after her alleged date of separation in 2015, including the Apartments Building V in City W and the Sri Lankan television production.  She also deposed that the husband on 30 June 2018 bought trucks for $464,000, excluding GST, without her knowledge or consent. 

26. She also sought that the property in her name at AA Street, Suburb BB be sold to provide interim funds. 

27. Mr T filed an affidavit on 23 July 2020, which confirmed his dismissal from employment in 2019.  He also sought to cast doubt on a chattels value valuation by the CC Group of the business of O Pty Ltd in 2019 and, it is fair to say, was generally supportive of his mother.  He deposed that the Sports car that he presently drives was a gift given to him which he has been driving since about 2014. 

1. The husband’s next affidavit, filed 28 July 2020, deposed to continuing difficulties with the Apartments Building V as a result of COVID-19 and asserted arrears of rent of $154,355.  He deposed to being on JobKeeper.  He asserted that the sports car and the Motor Vehicle 1 were owned by the N Group.  He deposed to a negative valuation on the Apartments Building V and to a personal guarantee he had given in respect to the obligations of R Pty Ltd, whose loan was secured collaterally over the J Street, Suburb K property.  He deposed the mortgage on the matrimonial home being $63,000 and at paragraph 54 confirmed that he drives the wife’s Motor Vehicle 2 worth $12,000. 

2. Otherwise, the affidavit traverses in some detail various areas of the dispute, but it is not necessary to detail those as they are essentially, in my view, repetitive of matters already asserted. 

3. The wife filed a further financial statement (I have omitted reference to the earlier ones because they have been overtaken by events) on 16 April 2021.  Her weekly expenditure had reduced considerably down to $1,130 per week.  I note that she appears still to be paying somebody else to clean the house/pool and to do the gardening/lawn mowing.  There appears to be $130 spent on pets each week, which seems a surprisingly high figure. 

4. In her trial affidavit filed 16 April 2021, the wife largely rehearsed the matters already asserted.  She deposed to Mr T and his wife recently moving out and to her suffering migraines.  She went on to assert an assault by the husband, who kicked her hands when she was pregnant with Mr T. I note a complaint that the husband valued the Motor Vehicle 1 on the Mother’s Day weekend whilst she was not present at the property. 

5. I note that the property at AA Street, Suburb BB, which was bought in 2006, was sold on 26 February 2021 for $640,000, which once the mortgage on the matrimonial home was paid off was divided equally, with each party getting $270,658.  She also deposed to the purchase of a property at D Street, Suburb E in 2006, the purchase of J Street, Suburb K on 6 February 2014, and a further property at L Street, Suburb M on 9 November 2017. 

6. At paragraph 54, the wife deposed to criminal conduct on the part of the husband and deposed, relevantly:

   “…   I note that the husband has not commented or made discovery about his criminal past which if not discovered by my lawyers could have potentially had a detrimental effect on the property pool and in particular the FMH which is a property I seek to retain as part of the settlement.”

7. She deposed to $100,000 allegedly held in cash in the husband’s work safe at J Street, Suburb K. 

8. The husband’s affidavit, filed 5 May 2021, noted that the Sports cars had been transferred to Mr T.  He appended materials.  He asserted the parties had been on family holidays to Country DD, Country EE and the Region GGG.  He deposed that there is no property held through the Company X Group in Sri Lanka and that he had lost his deposit.  He deposed to arrears of rent in respect of the Apartments Building V of $199,742.  He deposed to proceedings being commenced in Sri Lanka arising out of the film venture to which I have referred. 

9. He also noted that if the J Street, Suburb K property was called in as collateral for the City W loan there would be capital gains tax to be paid.  He also deposed to his alleged criminal past at paragraphs 88-89 and said:

   “88.     I refer to paragraph 54 of the wife’s affidavit and say that this particular allegation of me having a “criminal past” is particularly disappointing.  The compensation Order relates to our previous business.  In brief, the engineer commissioned by the transport business didn’t do so properly.  I was charged along with 53 other defendants who were also made subject to Compensation Orders.  Although I was not aware of the errors made this was a strict liability offence.  There were no “fraudulent” offences by me.

   89.      The wife has always been aware of the circumstances.  She was at home when the investigator came.  She called me to come home.  We spoke to the investigator together and the wife said words to the effect “why are you treating my husband like a criminal?””

10. The affidavit went on to value the contents of the matrimonial home at $60,000 and made an assertion that the wife had re-partnered. 

11. It will be noted that I have not commented on the affidavits filed by the various numerous professionals that the parties have engaged, but I will come to those in due course. 

    THE SUBMISSIONS MADE AND EVIDENCE GIVEN AT COURT

12. What follows is taken from my notes.  Self-evidently, it is not a transcript but records matters that I regarded as significant. 

    THE OPENING OF COUNSEL FOR THE APPLICANT WIFE

13. Counsel made an extensive opening.  She informed the Court that the value of the plant and equipment owned by the transport business was $941,245 at fair market value but $610,000

    
    

    at auction.  She traversed the ages of the parties and the relationship and noted that parenting issues had been settled by consent on 6 March 2019.  The children live with the wife and spend time with the father according to their wishes.  There had been a distribution of $133,000. 

    
    

    The wife is still in the family home in B Street, Suburb C and is a homemaker who worked part time between 1995 and 2000.  She stopped work as she was not allowed to continue to work.

14. Counsel traversed the husband’s transport business commencing in 2001 and its operation through several trusts and other corporate identities.  The wife says that there was abuse throughout the relationship, and the wife applied for an Intervention Order in 2005 when the protection incident took place.  In 2006, the property at AA Street, Suburb BB had been bought but the wife was unaware she was on title.  It had been sold and the parties took 50 per cent of the proceeds each.  There are still four other properties. 

15. The matrimonial home had a value of $1,125,000.  The property at J Street Suburb K is valued at $1,300,000 and is owned by P Pty Ltd.  There are two trading addresses, and in the husband’s material describes having the largest fleet of vehicles in Australia.  There is also a property at L Street, Suburb M worth $495,000, which is rented and the husband receives the rent.  This is in the name of the husband and has a mortgage of $350,000.  There is also the property in D Street, Suburb E worth $385,000, which is land only but is held in the name of the wife.  The property in Sri Lanka is worth $25,000.  Including the total of AA Street, Suburb BB, the total of the pool was $3,620,000.  The wife is the only person on title in relation to the D Street, Suburb E property. 

16. Counsel said there was a raid in 2007 and the husband was charged and convicted of taking a financial advantage by deception.  A restraining order has now been resolved.  There was a conviction before Judge FF in the County Court in 2010 and compensation ordered in the sum of $36,000, which has not been paid.  A restraining order is in the process of being removed.  Counsel submitted that separation took place on a final basis in April 2015 under the same roof.  The husband’s version is separation in 2018, when the Intervention Order was taken out. 

17. It was put that the husband had recently invested in GG Group, for which he says he now has a $400,000 liability.  The wife says this is nothing to do with her.  The Apartments Building V is leased and was purchased in 2016 (the leasehold which lasts till 2041) for $2,151,000.  The husband says this is worth nothing.  In June 2016, the Sri Lankan TV initiative was undertaken, and in 2017 the husband gave a personal guarantee for R Pty Ltd.   The L Street, Suburb M property was bought in November 2017 in the husband’s sole name.  In June 2018, he bought Company Z for $464,000. 

18. Following the full Intervention Order on 10 December 2018, the husband disconnected the utilities and gave no support whatever.  Bills were sent to the wife through the children.  The wife was referred to a psychologist following commencement of proceedings in January 2019 and is on antidepressants.  The husband had an argument with Mr T in January 2019, and thereafter Mr T’s employment ceased.  The mortgage on the matrimonial home of $80,000 was paid from the proceeds of the sale of AA Street, Suburb BB, but the remainder was divided.  The wife was removed as a director of the various companies in late 2020. 

19. The Apartments Building V has 41 rooms and is not worth nothing.  The wife seeks a division of 60/40, including the matrimonial home, D Street, Suburb E, L Street, Suburb M and the Sri Lankan property, together with $100,000 in cash.  There is a dispute about the Motor Vehicle 1, which is unregistered, which she wishes to keep.  The husband can keep the J Street, Suburb K property and the plant and equipment plus his business.  The wife relied upon her own affidavit, together with two expert witnesses, Mr HH and Mr JJ, to whose reports it may be necessary to come.  Counsel noted that the wife’s superannuation was $1,400 and that of the husband $140,000 and that an equalisation was sought. 

20. The wife was called and adopted her trial affidavit and her financial statement, the latter sworn 6 May 2021 as true and correct.  She denied having re-partnered.

    THE WIFE UNDER CROSS-EXAMINATION BY COUNSEL FOR THE HUSBAND

21. The wife confirmed that separation took place in 2015.  She accepted that the parties had been on a family holiday to City W in 2017.  The husband had paid and had also paid for her own mother to accompany the group.  It was put that they were still in a marriage.  They had looked after his mother earlier on, so they now had to look after hers.  Photographs of the trip to City W were tendered as exhibit R1. 

22. It was put that there were photographs of her and the husband at his 50^th birthday party in 2015.  The wife said her family organised the party and she was there.  Other people did not know their problems and they had to appear happy.  It was put that there were three to four holidays together between 2015 to 2018.  These had been to Country EE then City W.  There was one to Country DD which might have been before or after separation.  Exhibit R2 was tendered, being photographs of the 50^th birthday party. 

23. I should interpolate that the wife was palpably unwilling to answer questions put to her at this stage.  It should also be noted that the photographs seem to me to show perfectly happy family groupings and in the case of exhibit R2 the wife participating in the birthday party in the most enthusiastic manner. 

24. The wife also confirmed photographs for a trip to City FFF in 2016, which were exhibit R3.  It was put that all these photographs were unusual if the parties were separated.  She said they were separated but they were living in different rooms.  There was no payment of Centrelink benefits.  She said that photographs said to be of Country KK were Country DD.  There was no date or place.  It was put that there might have been a visit to Country KK on the way to Sri Lanka some time back.  Exhibit R4 appears to me to take the matter no further as it is not dated and where it actually was taken is in dispute. 

25. The witness was then taken to photographs of the parties taken in Country EE.  This was a trip for which the husband paid.  The children were going, and so she went.  These photographs were tendered as exhibit R5.  To say the least, they sit uneasily with an assertion that the parties were miserable in each other’s company and were not in a relationship. 

26. The witness was taken to a further set of photographs from the Region GGG in 2016. 

    
    

    The husband paid. 

27. It was put to the wife that she had knowledge of the business during the years 2015 to 2018.  She denied any such knowledge and said not only at that time but before also, she never knew anything about the business.  She said she knew nothing about the City W Apartments.  She was shown a photograph of her at the Apartments Building V but said she had been there once after it was purchased.  Staff of the Apartments were in the photograph.  She had known that the Apartments had been purchased by the husband after it was bought. 

28. The wife was shown photographs of the film and TV initiative.  Some of the TV program had been filmed at their home, and Mr T was in it.  She had cooked food for the crew but did not know the husband had invested in it.  She knew about it later.  This was when the film crew came.  They were doing the film.  The photographs were tendered as exhibit R8. 

29. The wife denied that separation took place in 2018.  She accepted that thereafter he had tried to make her pay the various household bills.  It was put that the husband had paid up until then, but the wife said he was at the home until 2018.  It was put that the only reason for separation was Mr T’s choice of bride.  The wife said a number of things had happened.  Arguments built up to that.  It has led to the Intervention Order. 

30. Cross-examination turned to the alleged $100,000 in cash kept in the husband’s work safe.  The wife said her son had taken some photographs.  (It should be noted that these photographs were not in any sense unequivocal).  Counsel next traversed $10,000 allegedly contained in the wife’s bank account in Sri Lanka.  Despite being shown bank records, the wife stuck to her position that the amount concerned was far smaller than counsel put it.  I have to say I found this extremely difficult to follow.  The wife denied that it was her signature on the bank withdrawal form and said that this was not done that way.  Exhibit R9, however, clearly shows a withdrawal of Rs995,000 rupees, and I do not believe the wife’s denials of the amount.

31. Counsel then traversed photographs taken of the wife and another gentleman.  One photograph has the words, “I love you, magē mänike” on it.  The wife said this was a friend of hers who lived in Sri Lanka.  He is a close friend but not her boyfriend.  The words magē mänike mean “my gem”.  She had been to Sri Lanka in 2021 and had seen this man.  She said she was not divorced initially but then said she was divorced on 29 March 2021.  She denied undergoing an engagement ceremony with the gentleman concerned.  I interpolate and say the wife’s answers were completely unbelievable, although I should say now that it is not possible to say whether or not the wife is in some new relationship that is likely to provide any financial support to her.  The wife confirmed that the photographs which constitute exhibit R10 include a photograph taken in 2020 in Australia, but the gentleman concerned is not a permanent resident. 

32. Counsel then cross-examined about a river trip in Country EE (photographs were tendered as exhibit R11).  The wife said they spent no nights on the boat but that they were together in the cabin.  When it was put that there was one cabin for her son and daughter with separate beds and one for them sharing a bed, the wife in effect refused to answer.  She was extraordinarily reluctant to answer simple questions about this matter when the photographs in exhibit R11 could not, at least in part, be clearer.  The photographs of the son and daughter clearly show separate beds.  The photograph of the other cabin appears to show a double bed. 

33. Counsel traversed the question of domestic violence.  The wife confirmed that she asserts domestic violence.  When asked if there was any evidence such as photographs or doctor’s reports to support this, she said no, there were not.  There had not been physical violence.  It was put that her assertion that she did not know about the financial dealings of the husband was not true, but the wife said that he had not allowed her to be involved.  He had told her to sign documents, and she signed.  He had not explained the documents to her at all.  When it was put that Mr T had explained documents to her, she denied this.  She said it was Mr Fonseka (the husband) who brought the documents.  She had been to the Apartments Building V once.  Mr T has gone to see the place, but Mr T had not explained the matter to her. 

34. Counsel cross-examined about an alleged failure on the wife’s part to allow a valuer to value the contents of the matrimonial home.  She said, “Who was asking?”  She said her son was handling all that and she could not remember.  The last month she was not at the home and had not refused the valuer.  It was put that the husband was not able to take anything of value from the house since the Intervention Order.  I took the wife to essentially disagree with this proposition.  It was put that the contents of the house were worth a lot of money, and photographs of the same were tendered as exhibit R12.  The wife confirmed that she wishes to keep the Motor Vehicle 1 and that Mr T had been living with her until recently.  It was put that Mr T had a good income, but the wife said he does not have a job after he moved away from his father’s.

    THE WIFE IN RE-EXAMINATION

35. The wife said that the various bills were managed by her son.  Her friend in Sri Lanka lives in Sri Lanka, and she had gone to Sri Lanka in 2021 because her mother was not well.  She denied that the Apartments Building V initiative was ever explained and said that he never explained the properties he bought.  Counsel re-examined about the incident on Mother’s Day.  A truck came, and she sent a photograph to her lawyer.  I have to say that although there was plainly some sort of endeavour by somebody acting on behalf of the husband to extract something, the answers about this aspect of the evidence were incomprehensible. 

36. The wife does wish to keep the Motor Vehicle 1 which is at the matrimonial home.  It is not working and not registered.  Everything is done by her son.  She had asked her husband for another one but he refused. 

    THE OPENING OF COUNSEL FOR THE HUSBAND

37. Counsel opened with a detailed description of the property pool as the parties put it. Inter alia it was submitted that the furnishings in the matrimonial home were a relevant resource under section 75(2)(o) of the Family Law Act 1975 (“the Act”).  Counsel referred to the significant amounts of moneys already advanced by way of part property settlement and noted the areas of contested liabilities.  These included the TV production and film liabilities in Sri Lanka, the rental arrears owed on the Apartments Building V, and the alleged $100,000 cash.  Counsel referred to an affidavit from a lawyer in Sri Lanka, Ms NN, and indicated that there would be a request to have her give evidence by telephone (this proved in the ultimate to be unworkable and no cross-examination took place). 

    THE EVIDENCE OF THE HUSBAND

38. The husband adopted his trial affidavit as true and correct and his financial statement also.  He indicated that he intends to renew the lease upon the Apartments Building V.  He noted that the loans were cross-collateralised. 

39. Under cross-examination by counsel for the wife, the husband confirmed that he had bought the lease at Apartments Building V in 2016 for $2,150,000.  He is a guarantor for the lease.  The Q Family Trust runs the Apartments Building V, and he has set that up.  He confirmed that R Pty Ltd is his Trustee for Q Family Trust.  Counsel traversed a number of other entities which involve the husband’s initials.  He said he controls the companies and the businesses.  He accepted that the wife was not engaged in day-to-day running of the businesses.  He said, however, he had not just told her to sign documents.  He is the manager of the businesses and runs them from day-to-day.  He said he discussed the businesses with the wife and then they made decisions. 

40. The husband confirmed the parties met in Sri Lanka in 1989, married in 1990 and came to Australia in 1992.  Mr T was born soon after.  Then they bought the home in B Street, Suburb C.  The wife worked in a business part time but stopped in 2001 after the birth of Ms U.  He said it was her choice not to work and he denied not allowing her to do so.  He worked six to seven days a week and 14 hours a day.

1. Cross-examination turned to the husband’s denial of any criminality on his part.  It was put that in 2002 he had imported vehicles.  It was put that there was a judgment in the County Court.  The husband agreed he was sentenced.  He said it was on his lawyer’s instructions to plead guilty and get away with it.  He received a suspended sentence.  It was put that he had lost his transport licence in 2006 but said this was not because of these charges.  He lost an income of $40,000 per year.  Exhibit A1 was tendered, being the sentencing remarks of Judge FF, to which I shall return.  The husband conceded that there was a lot of cash in his transport business.  He denied yelling at the wife and pushing her over.  She had reported to the Suburb LL Police Station because she was angry. 

2. It was put that she had obtained an Intervention Order but the husband suggested that this was based upon what the wife had said.  He was not controlling her.  She had not wanted to be involved, so he had had to control their finances.  He used to give her $500.  They had a joint account and she had credit cards.  Counsel traversed the sale of the property in 2019.  Ms U’s school fees were paid and then the residue was divided.  It was put that he was not happy at this, but the husband said he needed the money for the business.  It was put that after separation in 2018 he had not given the wife financial support, and he appeared to agree with this. 

3. It was put that he had sent the various utilities bills to the wife, but the husband did not really answer.  Indeed, I will interpolate and say that a number of his answers about this aspect of his evidence were prevaricating and simply not responding.  He conceded that the Intervention Order followed a Family Violence Application.  He denied verbal abuse in 2017 and denied calling the wife a slut, whore or bitch or the daughter of a slut.  It was totally false to suggest that he had threatened to kick the wife out of the house.  He was in City W from time-to-time.  He said no to a trip to Sri Lanka for the wife but had not blocked her accounts, (it is plain from the materials as a whole that this assertion was untrue).  The allegations advanced in 2005 were made up and false.  The Intervention Order Application was tendered as exhibit A2.  The text he was accused of was sent to the wife’s family.  He had not called her a two-faced bitch.  It was her eldest sister.  When it was put that he had rung her family overseas, he said they rang him, too.  The texts were tendered as exhibit A3. 

4. When it was put that he had given the wife $400 to $500 per month, he denied this.  He said she had full access to joint accounts and she had her credit cards, which he paid for.  If she asked for money, he would give her money.  The business structure is not complex for him.  She is not interested.

5. The husband denied separation in April 2015.  This was not at all the case – he said not at all.  They had not had different bedrooms and she was not in the guest bedroom.  He conceded that there had been a final Intervention Order on 1 August 2019 without admissions.  It was put that the AA Street, Suburb BB property was bought in 2006 in the wife’s name, this being the year he had his criminal charges.  He denied this.  She knew she was on the title.  There was always discussion at the home.  Mr MM was a friend of his.  P Pty Ltd is based on an import business.  It owns J Street.  When it was put that Mr MM’s name was on bank statements, he said this did not affect him.  Exhibit A4 was tendered, being the bank statements from Mr MM. 

6. The husband agreed that he had bought the D Street, Suburb E property in 2006.  The wife was on title.  It is land which is not being used and has a value of $385,000.  He sent the bills in respect of this property to the wife.  The three accounts were frozen till they came to court, and he had no money to pay anything.  He had not disconnected the electricity and not disconnected the gas.  The internet was not in his name.  He had not given the wife financial support because he did not have any financial support himself.  (The husband’s answers at this point were angry and vituperative). 

7. The husband agreed that he had set up the Family Trust in 2013 and that that operated O Pty Ltd.  When it was put that the wife had no input, he said it is family input.  She wanted him to control it and somebody has to do it.  He got warehouse capacity because he had run out at J Street and also Suburb OO. 

8. Exhibit A5 was tendered, being promotional material for O Pty Ltd. 

9. The husband agreed he had bought Company Z in 2018 for $464,000.  What he mainly bought was the customer base.  His business was not booming.  He does not have resources now.  Mr T has no longer been working since 2019.  When asked how many employees he has, he said three to four, of whom only two are full time at the moment.  Last year there were three including himself.  There were two part time last month.  There is himself.  There is one employee in the office and one driver.  They do not receive cash. 

10. The husband was cross-examined about the alleged $100,000 in the safe.  He said it was not even $1,000.  There is no cash in the business.

11. The husband was asked about sending the wife tax notices in March 2019 but said he did not remember.  He then said it was her tax bills.  He changed the loan in respect to B Street, Suburb C to joint names.  He could not ask the wife about this because of the Intervention Order.

12. The husband was cross-examined about the lease in 2016 of the Apartments Building V in City W.  He agreed that the loan was $2,150,000 but the bank wanted cross-loans.  He did not recall saying that the lease was worth $800,000.  He now gets about $800 or $900 per week.  He does not get any money from Q Family Trust.  He was cross-examined about leasing a bus which is worth $15,000 to Apartments Building V for $46,000 per year, but he denied this.  Records of Q Trust were tendered as exhibit J6. 

13. The husband said his travel expenses in 2019 was because he was travelling for business.  When asked about travel to Country PP and Sri Lanka in 2019, he said that he had to travel for business.  His answers at this point were arrogant and dismissive.  Exhibit A7 are documents relating to Q Trust, as is Exhibit A8.  $16,000 was for repairs to the bus.  The $40,000 for painting was required work at Apartments Building V.  When asked about the transfer of $552,636 to Q Pty Ltd, he said they were using their own staff and costings.  A payment of $111,000 in July 2019 was because every seven years they have to paint.  Exhibit A9 is the ledger document.  Further cross-examination about large payments of $300,000 led to the tender of exhibit A10, being the 2018 ledger. 

14. The husband confirmed that the Apartments Building V has 41 rooms.  They do not now do lunch or dinner.  He was then cross-examined about internet records from TripAdvisor showing that the property was sold out.  He said this was done so no one could book.  Their hot water system failed but is now repaired.  There is under 20 per cent occupancy. 

15. The husband said he was not aware that the wife had a mental health plan, nor that she was seeing a psychologist.  He denied calling her a bitch to Mr T.  He identified photographs of equipment and trucks which were not included in the valuation.  He said they were taken a long time ago and they were no longer in the fleet.  He did not recall when they were sold.  He was referred to a guillotine and said it was not his.  He denied concealing items from the valuer.  These were third‑party items.  He said the guillotine had been his but he sold it, but it was still there.  He said he gave access to the valuer to everything he asked.  He had not asked to access where he lived.  A photograph of the guillotine was tendered exhibit A11. 

16. I interpolate and say that the husband’s evidence at this point had all the appearance of being made up on the run. 

17. The husband said he had roped-off areas containing property belonging to someone totally different, and this aspect of his evidence at least was given with conviction and I accept it. 

18. The husband was cross-examined as to the wife’s resignation from the various entities.  He said she had not wanted to sign loan documents and had resigned. 

19. The husband was cross-examined about GG Group, which he had set up in June 2016.  When asked how much he had invested, he said he did not remember.  This was something she wanted to do and was not his idea.  It was a family idea.  He said that you cannot take the whole family to sign a piece of paper (to explain why only he had executed the relevant documents).

20. The husband was cross-examined about money in his bank account to the order of some $200,000 or more.  The husband said he cannot defend his Sri Lankan proceeding.  He did not respond because he does not have any money.  He then changed his answer, once again appearing to make the answer up on the run, and said that he thought his lawyer had responded to the demands.

21. The husband confirmed that the L Street, Suburb M property was bought in his name alone in November 2017.  He had then purchased Company Z for $464,000.  He had given a personal guarantee for the loans of R Pty Ltd.  When asked about his jewellery, he said the wife had it because he had no time to take any.  The holiday unit in Sri Lanka did not happen.  There was a 5000 rupees deposit.  The company building it went bankrupt.  The husband conceded the wife was five years older than he was and that it was a long marriage.  He said he will work with the transport business and the Apartments Building V business also.  When asked about the Mother’s Day affair he said his son asked to borrow a truck for the weekend.

22. In re-examination, the father was taken to a ledger entry for $320,000 in September 2017.  He said this could have been anything.  He confirmed that he had paid $800,000 off the $2.1 million he had borrowed for the Apartments Building V.  He had made further borrowings because the business was going down.  When asked about a payment of $111,000 to O Pty Ltd in July 2019, he said this was painting for two buildings in the Apartments Building V which was required by the lease.  He was asked why he set up P Pty Ltd, and said this was for importing.  There are only 25 licences each year.  He set up three companies to get 25 times 25 times 25.  He was asked about joint bank accounts after separation.  He said the Intervention Order was in place when he got back from City W.  He went to the bank, but the account was frozen.  He had not frozen the bank account.  He was asked why he had not allowed the wife to go to Sri Lanka.  He said Ms U was doing her final exams and he had proposed a trip to Country QQ afterwards. 

    THE ATTEMPT TO CALL MS NN

23. Endeavours were made to take evidence of the Sri Lankan lawyer Ms NN by phone.  On the first occasion that telephone contact was made, it was not possible to hear what she was saying, let alone understand it.  Thereafter all attempts at telephone contact proved impracticable.  The affidavit forms part of the file, but such weight as is to be given to it is obviously diminished. 

    THE EVIDENCE OF DR RR

24. Dr RR is a Consultant Psychiatrist.  He adopted his affidavit and report as true and correct.  He confirmed that the report he had given as to the husband was based on the information given to him by the husband.

25. Under cross-examination, Dr RR said he had not seen the husband until recently.  They had had two sessions.  There was one face-to-face on 2 March 2021, with a follow-up on 28 April 2021.  The primary source of information was the husband.  He had told the doctor that he was living in makeshift accommodation and had been there for the last two years.  He had mentioned he had a transport company, but he was not aware of other companies.  He had mentioned the Apartments V.  He had mentioned the Intervention Order but had not discussed it much.  The husband’s major stressors were problems with the wife and children.  The doctor has now linked him to mental health support.  Litigation is one source which activates his depression.  There could be other factors.  Because he is the Director, there is no fixed hours of work.  His productivity levels are quite low.  He has problems with attention and concentration.  He said he was too young to retire.

    THE EVIDENCE OF MR SS

26. Mr SS is a Chartered Accountant who adopted his affidavit as true and correct.  His firm acts as Accountant and Registered Tax Agent for the husband in relation to his personal tax and to a number of his companies.

27. Mr SS confirmed he had been an Accountant for the wife until separation.  Information was given to him by the husband.  He does not do the transport business and P Pty Ltd accounts.  There are income distributions through the Fonseka Family Trust.  He started working with the husband in 2015.  The 2020 returns have been prepared but not lodged.  He has always done tax in a timely manner and has never been behind.  There are funds allocated to the husband’s loan account.  He is not involved in the N Group.  He terminated his arrangement with the wife when the husband told him they separated in 2017.  The husband had told him that the D Street, Suburb E property was in the wife’s name.  He had never heard of Mr MM. 

28. In answer to a question from the Court, Mr SS confirmed that the loan entries in the various accounts were not in fact real loans in the sense that they did not reflect funds actually advanced, nor were they likely to be repaid.  They were, in effect, book entries.

    THE HOT-TUBBING OF THE TWO ACCOUNTANTS MS TT AND MR JJ

29. It should be noted that the Court had canvassed with the parties the so‑called hot-tubbing of Ms TT and Mr JJ, the two valuation accountants who had provided valuations of the husband’s business interests.  This proposal was supported by both counsel.  I embarked upon this course because it enabled me to satisfy myself as to those matters that appeared to me to have arisen as points of difference between the experts in a more structured and time-efficient manner than would otherwise have been the case by having them cross‑examined separately.  Once I had put my own questions, I permitted counsel to cross-examine as they wished.

30. It should be noted that I introduced the matter by outlining my understanding of the methodological differences between Ms TT and Mr JJ to them.  I put it that Ms TT’s approach was to take four times EBIT (‘earnings before interest and tax’), and that of Mr JJ was to take a multiplicand of earnings, the latter in his case being based upon a conversation he had had with someone in the industry.  They confirmed that this was essentially correct.

31. I asked Ms TT to explain why she stuck by her valuation.  She said the losses were continuing.  Even with EBITDA, as Mr JJ suggested was appropriate, there was only a profit of $20,000.  There was no commercial goodwill and there had been significant losses.  The fair market value of the machine was uncertain.  Selling was very uncertain.  A similar business in 2018 was not trading.  It was not likely these businesses would continue.

32. Mr JJ, by way of contrast, said that the cash flow was positive.  There had been no evidence of any endeavours to reduce costs by the businesses.  Suburb OO had been bought and no equipment had been sold.  The loan was originally over $2 million in respect of the Apartments Building V, and the business was now valued at $50,000.  He had called a hotel broker.  Mr JJ had not been given all the relevant information.  It was a leasehold Apartments V.  It was not a management right purchase.  The owner can live in it.  There would be Body Corporation and letting fees.  He had checked four apartment blocks which had long leases, three in Queensland and one in City VV.  This suggested a value per room of $38,000, and there were 41 rooms at the Apartments Building V.  Ms TT says there is $12,000 per room.  He had looked at the return, and with a small to medium apartments with this kind of turnover you would usually apply a multiplicand of between two and five. 

33. Ms TT accepted that the exclusion of the Motor Vehicle 1 would reduce the value of the companies by $60,000. 

34. Under cross-examination by Ms Paull, Ms TT confirmed that she had not received the ledgers and only had got them on Monday of the current week.  She noted the reduction in subcontractors and sales.  Mr JJ confirmed that although revenue was reducing, no changes had been made.

35. Mr Robinson cross-examined about the value of the Motor Vehicle 1, and Ms TT confirmed that she had chosen the midpoint to the fair market value and auction.  Ms TT accepted that the midpoint between auction and fair market value was $775,623, but that $60,000 should be taken out for the Motor Vehicle 1.

36. Ms TT confirmed that the $1.1 million income was in 2019 and 2020.  Q Family Trust was net assets only in this supplementary report.  There were alterations to expenses, as the bus had been disposed of and travel expenses were included.  With the changes, this gave an operating profit of $124,000.  She had applied a multiple of four.  

37. By leave, the husband was recalled to give further evidence.  He said he dealt with the guillotine.  It had been owned by his business but he had sold it.  He produced purchase documents dated 20 February 2017 and a bank statement.  Exhibit R14 was a bundle relating to the sale of the guillotine.  The trucks were sold before separation.

38. In cross-examination, the husband confirmed that he had driven a Motor Vehicle 3 to Court on the day.  He said this was a company car which had been owned since 2003.

    THE EVIDENCE OF MR HH

39. Mr HH is a Plant and Equipment Valuer who adopted his report.  He confirmed that there had been discussions with the husband’s expert, Mr XX, and they agreed that the auction value of the plant and equipment was $525,750.  Exhibit A13 was their joint valuation.  The vehicle was not valued.  Motor Vehicle 3 is a YY brand.  The photograph of it was tendered as exhibit A14.  In cross-examination, Mr HH was adamant that the vehicle in which the husband had driven to Court was not a vehicle he had valued at a nominal sum.  Aspects of some of this evidence almost descended to farce, with counsel seeking to take Mr HH into the carpark opposite the Court.  Disputation at this level is not of assistance.

40. At this point, the matter was adjourned so that the husband could obtain a further report as to the value of the businesses.  This was produced to counsel for the wife at 10 o’clock on the adjourned date, a spectacularly unhelpful, discourteous outcome, so the matter was then adjourned for three more days to give counsel for the wife a fair opportunity to prepare to cross-examine.

    THE EVIDENCE OF MR ZZ

41. Mr ZZ is a Chartered Accountant, and in the scheme of things it comes as little surprise that his report produced a lower set of valuations than those contended for by Mr JJ, the expert called by the wife.  He adopted his amended report as true and correct.

42. Under cross-examination by counsel for the wife, it was noted that he had produced three valuations for plant and equipment and was now saying $668,000.  He had been aware of the evidence of Ms TT and Mr JJ, because he had been in Court.  Schedules he had prepared were handed up marked as MFI-1.  The difference was the plant and equipment.  He had seen the compromise letter.  He noted that CC Group and BBB Group (the two valuers of the plant and equipment) had not agreed auction value but did agree a fair market value.  Fair market value was $941,245.  The auction value would be lower on any view.  He disagreed with fair market value.  There had been substantial losses from 2018 onwards.  The major difference of opinion was in relation to the Apartments Building V.  If property was not sold, there would be no Capital Gains Tax.  The husband told him he had an option to renew the lease in 2024 but had not told him he had such an option in September 2021.  He disagreed that depreciation should be included but management fees should be.  Mr JJ had thought the value should be EBIT times three.  The lease relied upon was not the same number of years as Apartments Building V.  The three apartment complexes Mr JJ had relied on were all operating at a profit. 

1. It should be noted that while the $952,750 is undoubtedly the base figure of the worst case scenario, it gives rise to the difficultly that the $200,000 presently in the husband’s possession is double counted (as it is part of his part property settlement – as is apparent from his successive financial statements) and I will therefore reduce the notational amount in his distribution on these assumptions by the $200,000 (approximately) that he would need to apply to the rent. 

2. The resultant total on a minimal basis for the pool is $3,251,030. 

3. It should be noted however that I do not think that minimum outcome referred to is more probable than otherwise.  As already indicated I think it is more probable than otherwise that the Husband will be able to retain the Apartments Building V which will, albeit perhaps over a more lengthy period of time, become profitable and not only discharge the associated debts but give the Husband an income which would appear to be likely in hundreds of thousands of dollars per annum.

4. These findings present the court with a real dilemma. There is no doubt that the irreducible minimum value of the husband’s business interests is $952,750, as I have just observed, I think that in the longer run his earnings from the Apartments Building V and indeed his other businesses are likely to be very substantial albeit at present unquantifiable. In the particular circumstances of this case, which is the first time I have faced this conundrum in my time on the bench, I think that the appropriate way to deal with this rather than opening the door for yet further disputation by the experts is to adopt the minimum value but to treat the husband’s likely increased earnings and business values as a relevant matter under section 75(2)(o), which I propose to do.

   CONTRIBUTION

5. The husband submitted that his contributions were greater and that the overarching position should be 55/45.  The wife’s position is that the contributions were equal.  This was, on any view, a long marriage in which the parties had very little when they started.  The wife worked for five years until the birth of the second child, but not thereafter.  It is clear that the considerable business interests and property holdings that the parties have in terms of direct contribution came entirely from the endeavours of the husband.  The wife had, as she puts it, no material involvement in the creation of the parties’ wealth.  Her role was that of the homemaker and mother.  The High Court has made it clear in the case of In the Marriage of, Re Mallet [1984] HCA 21 that such contributions should not be assessed in a tokenistic way, and of course I will not do so. Nonetheless, every case turns on its own facts, and in this particular instance it seems to me that the husband’s efforts were way out of the ordinary. The uncontradicted evidence is that he worked up to three jobs at a time. He worked very long hours, often seven days a week. It is plainly through this energy and effort on his part the parties now find themselves in the relatively beneficent position in which they are. In my view, in the particular circumstances of this case, an assessment of 55/45 is indeed an entirely fair one.

   FUTURE NEEDS

6. The wife is 59 and does not speak English.  She has not worked for many years.  I have to say that the tenor of her position as articulated from time-to-time in this case, including in the interlocutory proceedings, suggests that she sees no need for her to work in any event.  She proposes to continue to live in a five-bedroom home with one of her daughters, which is on any view of the matter very luxuriously appointed.  While I fully accept that work might very well be problematic for her, I also suspect that work is simply not on her agenda in any event.  

7. The wife’s mental health is precarious, at least in large part because of these proceedings, a position which seems to me fully replicated on the other side.  Both of these sides strike me as being fairly avid in their desire to obtain the optimal outcome in these proceedings, and while that is understandable, I think it has also informed their view of their future circumstances as they have articulated it. 

8. I do not accept that there should be any adjustment in the wife’s favour in respect of her care of Ms U.  Ms U is an adult and there is no reason why she should not be, at the very least, providing for herself if not actually contributing to the household in which she lives.

9. The husband’s future earnings represent an entirely different picture to those of the wife.  

10. The husband is a man, in general terms, of tremendous energy and application.  His business success speaks volumes.  Although his present mental health is somewhat depleted, there is no reason to imagine that once the stress of this proceeding is over he will not sedulously apply himself to the business interests that he has built up over so long a time.  As earlier indicated, I think it more probable than otherwise that he will be enormously successful.

11. Calibrating the likely massive future earnings difference between the parties, in my view, should give rise to a 20 per cent adjustment in the wife’s favour.  I note that that is the amount that the wife seeks, although that outcome is very much bounded about by her articulation of the pool.  What she really wants is all the properties other than the J Street, Suburb K one and that the husband take all the liabilities save the mortgage over the L Street, Suburb M property, which is presumably either income-positive, or at least successfully negatively geared.

    CONCLUSION

12. Where does all this leave us?  This case has been rendered all the more difficult by the way in which it has been conducted.  Late-produced expert reports (attended by much complaint by the other side in each instance) have only complicated what was a difficult case in any event.  Looking at the hard and precisely valued assets, they comprise the matters set out in paragraphs 173 and 174 above.  A simple calibration of an overarching 65/35 result in the wife’s favour would come to the following figure (including the part payments already received) $2,113,169.  

13. If one looks at the hard assets that the wife desires, if she retains her part property settlements, the matrimonial home, D Street, Suburb E, the Sri Lankan property, her funds in Sri Lanka and the Motor Vehicle 1 the resultant total would be $1,981,280, a shortfall of $131,889.  I will order the husband to pay her an additional $130,000 (rounded off).  Clearly the husband will retain responsibility for the Apartments Building V and Sri Lankan film debts, and the L Street, Suburb M mortgage.  Whether he chooses to pay the wife from his present funds or otherwise raises the $130,000 is a matter for him.

14. This outcome, is self-evidently not perfect because of the various uncertainties that this case is so riddled with, but it is in my view a just and equitable outcome.  It gives the wife the larger share of assets as they now stand but leaves the husband with something even if the worst comes to pass.  Even were that to be the case, I think that the husband’s energies and abilities will enable him ultimately to resuscitate has affairs substantially.  If he does better than expected than this judgment assesses, it is clear that any such increase would owe everything to his own endeavours. 

15. I should repeat for clarity that I have not felt it appropriate to seek to obtain further expert evidence from anyone, including Ms TT.  I repeat that I thought Ms TT was the least unsatisfactory of all three professional witnesses but the uncertainties that surround the circumstances of the husband’s businesses are so significant they simply cannot be put to one side to produce an artificial figure save the irreducible minimum one I have adopted.  I have thought whether it may be appropriate to obtain yet further evidence from Ms TT or conceivably some fourth party, but that will only give rise, given the way the parties approached this matter, to yet further expense and delay and probably will not produce any greater certainty. 

16. This brings into play another remark I should make at this point.  Counsel for the husband suggested perhaps only faintly that the matter should be adjourned to see in effect how things come out.  These parties need certainty now.  While COVID-19 may be getting better it may be with us in effect, forever.  The idea that everything will be known within even in a year or two is by no means in anyway clear.  I do not propose to delay the matter.

17. Finally, and this achieved very little attention during the hearing, the wife has sought an equalisation of superannuation.  I did not understand this to be the subject of substantial resistance.  Given the length of the relationship, and the fact that almost all superannuation must have been garnished during it, it is plainly just and equitable there be a superannuation equalisation and I will make the relevant orders for that.  We do not appear to have the husband’s precise superannuation details at present but those will be ordered to be provided to enable the split to occur. 

18. I have drawn draft orders to reflect these conclusions but given the complexity of the business interests I will hear further from the parties in case there is something I have overlooked.

I certify that the preceding one hundred and ninety-two (192) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt.

Associate:

Dated:       22 July 2021

SCHEDULE

Husband’s business interests – worst case scenario.

Apartments Building V sold – no purchaser

Debt  $800,000

Rent owed  $200,000

Less Chattels etc.  $110,000 (rounded off)

Assuming payment of rent from bank funds             $200,000

$690,000

Sale of J Street, Suburb K  $1,300,000

Total  $810,000

Plus agreed auction value other plant and equipment (exhibit A13) $552,750

$1,362,750

Less Sri Lankan debt (max)  $410,000

Final Total  $952.750.