Bhagat & Sandhu (No 4)

Case [2025] FedCFamC1F 229

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Bhagat & Sandhu (No 4) [2025] FedCFamC1F 229

File number: SYC 806 of 2020
Judgment of: SCHONELL J
Date of judgment: 9 April 2025
Catchwords:

FAMILY LAW – PROPERTY – Final Orders – Proceedings for financial adjustment pursuant to Pt VIII – 15-year marriage – Where the parties are agreed as to the value of their assets and as to how their assets should be divided in specie save for a jointly owned property – Where the parties are in dispute as to the inclusion of various addbacks – Where the husband contends that there be no adjustment under s 75(2) – Where the wife contends that a further 15 per cent adjustment under s 75(2) should be made in her favour.

FAMILY LAW – ISSUE ESTOPPEL – Where the husband contends that the family violence allegations have already been litigated in the parenting proceedings such that an issue estoppel arose – Where there is no finding determining the family violence allegations in the earlier proceedings, so no issue estoppel can arise in these proceedings.

FAMILY LAW – FAMILY VIOLENCE – Where the wife sought an adjustment for family violence perpetrated by the husband as the wife’s contributions were made significantly more arduous – Where the husband denied all incidents of family violence – Where the husband elected to call no evidence about allegations of family violence beyond a denial – Where the  Court finds that the husband perpetrated family violence such that the wife’s contributions would have been made more arduous.

FAMILY LAW – Contributions by grandparents – Where counsel submitted that the Court should have regard to the contributions made by their respective parents – Where at times throughout the relationship both the maternal and paternal grandparents would assist in the care of the children – Where the wife conceded that the paternal grandparents were present in the parties’ homes more often than the maternal grandparents for cultural reasons – Consideration of s 79(4) and s 75(2)(o) – Where there needs to be some evidentiary foundation for consideration even within the rubric of something as broad as the “justice of the case” – Where the Court is not satisfied that the evidence is sufficient to conclude that assistance by grandparents constitutes a contribution.

Legislation: Family Law Act 1975 (Cth) Pt VIII, ss 75(2), 79
Cases cited:

AB & ZB (2003) FLC 93-140; [2002] FamCA 1178

Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232

Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303

Bhagat & Sandhu (No 3) [2024] FedCFamC1F 301

Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27

Browne v Dunn (1893) 6 R 67

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

Cubillo v Commonwealth (No 2) (2000) 174 ALR 97; [2000] FCA 1084

Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395

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Bhagat & Sandhu (No 4) [2025] FedCFamC1F 229
Case
[2025] FedCFamC1F 229
Decision Date

CaseChat Overview and Summary

Bhagat & Sandhu (No 4) involved a dispute over the division of assets following the final separation of the parties. The husband and wife had been married for 15 years and had accumulated various properties and financial assets during their marriage. The primary issue before the court was the appropriate division of the parties' assets, particularly in light of the wife's contention that family violence perpetrated by the husband had made her contributions significantly more arduous. The court also needed to determine whether an issue estoppel applied due to previous litigation over family violence allegations, whether contributions by the parties' grandparents should be considered, and whether the proposed asset division was just and equitable.

The court rejected the husband's claim of issue estoppel, noting that there was no finding determining the family violence allegations in the earlier proceedings. The court found credible the wife's evidence of family violence, which it determined made her contributions more arduous, warranting an adjustment under section 75(2) of the Family Law Act 1975 (Cth). The court did not find the evidence sufficient to conclude that contributions by the grandparents constituted a relevant factor. Given these findings, the court decided that a 7 per cent adjustment in favour of the wife was warranted.

The court ordered the assets to be divided 60 per cent to the wife and 40 per cent to the husband. The husband was required to make a payment of $313,478 to the wife within 90 days, with specific directions given for the transfer of certain properties and the discharge of associated mortgages. The court also made orders for the transfer of other properties, bank accounts, and a safety deposit locker, along with provisions for the division of tax debts and mutual releases from liability. The form of the orders was subject to entry in the Court’s records, and any minor errors or variations could be subject to review under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

SYC 806 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR BHAGAT

Applicant

AND:

MS SANDHU

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

9 APRIL 2025

THE COURT ORDERS THAT:

1. Within 90 days the Husband shall transfer to the Wife, all of his right, title and interest in the real properties known as and situated at M Street, Suburb N in the State of New South Wales (“the Suburb N property”) (Folio: …) and GG Street, Suburb HH in Region NN (“the Region NN property”) (Folio: …) and simultaneously the Wife is to do all acts and things necessary to discharge the mortgage secured over the properties and refinance them into her name.

2. Within 90 days of the making of these Orders the parties shall do all acts and things necessary, including signing any such documents, to give effect to the following which are to occur simultaneously:

(a) The husband shall pay the wife $313,478;

(b) The Wife shall transfer to the Husband, all of her right, title and interest in the real property known as and situated at JJ Street, Suburb KK in the State of New South Wales (“the JJ Street property”) (Folio: …) and the Husband is to do all acts and things necessary to discharge the mortgage secured over that property and refinance the property into his name;

(c) The Husband is to do all acts and things necessary to discharge the mortgage secured over real property known as and situated at LL Street, Suburb KK in the State of New South Wales (“the LL Street property”) (Folio: …) and refinance the property into his name.

(d) In the event that the husband fails to comply with order 2 then the JJ Street property is to be sold on the following terms:

(i) A solicitor is to be appointed by agreement to act on the sale and failing agreement by the Husband proposing two and the Wife selecting one;

(ii) The parties shall co-operate with all reasonable requests by the real estate agent in relation to the sale including to facilitate inspections by prospective purchasers;

(iii) Pending the sale of the property the husband shall maintain the property inclusive of all mortgage and rate repayments.

(iv) In the event that the property is not sold by public auction within a period of six (6) months from the date of these Orders, the parties are to do all acts and things and sign all documents necessary to forthwith re-list the property for sale by public auction to occur every two (2) months, on the same terms as set out herein save that, unless otherwise agreed, the sale or reserve price shall be reduced by 5 per cent at each auction until the property is sold.

(v) On completion of the sale the proceeds of sale shall be applied in the following order of priority:

A. In discharge of any mortgage(s) and loans secured over the property (as may be applicable).

B. In payment of any outstanding council rates, water rates or land tax due in respect of the property.

C. In payment of any real estate agent’s commission, marketing expenses, auctioneer’s fees.

D. In payment of any solicitor’s costs and disbursements for acting on the sale.

E. Such amount as is necessary to satisfy Order 2(a)

F. Balance if any to the husband.

3. In the event that the husband remains in default of compliance with Order 2(c) and/or the amount payable to the wife from the proceeds of sale of JJ Street is insufficient to meet the payment to the wife in accordance with Order 2(a) the wife is granted liberty to apply on 7 days’ notice to seek further orders by way of enforcement.

4. Pending the husband’s compliance with order 2 he is restrained from dealing in any way with the LL Street property other than for the purposes of complying with Order 2.

5. Within fourteen days (14) days, the parties are to do all acts and things and sign all documents necessary to transfer to the wife the properties situated at 1 MM Street, Suburb OO City PP in Country D (“the 1 MM Street property”) and QQ Street, Suburb RR, City SS in Country D (“the QQ Street property”) and for this purpose the husband must provide the wife, through her lawyers, with:

(a) A power of attorney, and any other documents required, to authorise her to transfer the Country D properties to her sole name;

(b) All title documents and other registration documents for the Country D properties;

(c) All tax and utility documents relating to the Country D properties;

(d) Documents evidencing payment of taxes and utilities for the Country D properties;

(e) All keys for the Country D properties;

(f) All other documents or items as may be necessary to effect the transfer of the Country D properties to the wife, within 7 days of any such request from the wife.

6. The Wife shall within fourteen (14) days of receipt of confirmation from the Tax Department of Country D of the outcome of her appeal, produce documents confirming the balance owing in respect of her income tax debt in Country D and the husband shall forthwith pay 50 per cent of the balance outstanding to the wife.

7. The Husband shall within fourteen (14) days produce documents confirming the balance owing in respect of his income tax debt in Country D and the wife shall forthwith pay 50 per cent of the balance outstanding to the husband.

8. It be declared pursuant to section 78 of the Act that the Husband is the sole owner in equity and at law, to the exclusion of the Wife, to all of his right, title and interest in the following properties:-

(a) The real property known as and situated at 2 MM Street, Suburb OO, City PP in Country D (“the 2 MM Street property”); and

(b) The real property known as and situated at TT Street, Suburb UU, City PP in Country D (“the TT Street property”).

9. The parties shall, within fourteen (14) days, do all acts and things necessary, including executing and No Objection Certificate and any other such documents necessary within seven (7) days of receiving those documents, to transfer to the Husband all of the Wife’s right, title and interest to a Safety Deposit Locker located at VV Bank in Country D (“Safety Deposit Locker”), and the contents therein, to the Husband and, the Wife is restrained as from the date of these Orders to accessing or causing or authorising any third party to access the locker and remove the contents therein.

10. Following compliance with Order 11 above, the Husband shall be declared pursuant to section 78 of the Act as the sole owner in equity and at law, to the exclusion of the Wife, to the Safety Deposit Locker.

11. The parties shall, within fourteen (14) days, do all acts and things necessary, including executing any documents necessary within seven (7) days of receiving those documents, to transfer to the Wife all of the Husband’s right, title and interest to the WW Bank Country D Account (acc no…) (“WW Bank Account”), to the Wife and, the Wife is thereafter declared pursuant to section 78 of the Act as the sole owner in equity and at law, to the exclusion of the Husband, to the balance of that account.

12. The parties shall, within fourteen (14) days, do all acts and things necessary, including executing any documents necessary to transfer to the wife the balance of the Westpac offset account ending …96 and the Wife is thereafter declared pursuant to section 78 of the Act as the sole owner in equity and at law, to the exclusion of the Husband, to the balance of that account.

13. Subject to these orders, and except to the extent required to enforce these orders, the Husband, hereby releases the Wife to the fullest extent permitted by law from any debts, liabilities, demands or claims whatsoever which the Husband has or would have had against the Wife but for these orders and this release.

14. Subject to these orders, and except to the extent required to enforce these orders, the Wife, hereby releases the Husband to the fullest extent permitted by law from any debts, liabilities, demands or claims whatsoever which the Wife has or would have had against the Husband but for these orders and this release.

15. Subject to these orders, the Husband is to indemnify the Wife, and keep the Wife so indemnified, in respect of any debts, liabilities, demands or claims whatsoever arising from or connected with any liabilities retained by the Husband pursuant to these orders.

16. Subject to these orders, the Wife is to indemnify the Husband, and keep the Husband so indemnified, in respect of any debts, liabilities, demands or claims whatsoever arising from or connected with any liabilities retained by the Wife pursuant to these orders.

17. Except as otherwise provided in these orders, the parties are each declared the sole owners in equity and at law, to the exclusion of each other, to all items of property and financial resources, including furniture, jewelry, household items, choses-in-action, motor vehicles, money in bank accounts and superannuation entitlements held in their respective names, possession or control as at the date of these orders.

18. Except as otherwise provided in these orders, the parties are each to remain solely liable to the exclusion of each other to any debt or liability held in their respective names as at the date of these orders.

19. In the event that either party refuses to do any act or thing or sign any document necessary to give effect to these orders, a Registrar or Judge of the Federal Circuit and Family Court of Australia at Sydney is appointed pursuant to sections 106A of the Act to do any such act or thing or execute any such document at the cost of the defaulting party.

20. In the event that any party seeks an order for costs they are to submit to my Associate within 28 days a Minute of Order setting out the order sought and an Affidavit setting out the basis for such an order. That matter will thereafter be listed to hear argument as to costs.

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).

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

Background

Background to the litigation

For the reasons that are set out below, I am not satisfied that either party’s proposal represents a just and equitable division of the parties’ assets.BACKGROUND The husband was born in 1975 and is 49 years of age. The wife was born in 1980 and is 44 years of age. The parties were married in 2005 in Country D and separated on a final basis on 3 February 2020 when the wife left the former matrimonial home. The husband addressed an earlier date of separation in his affidavit as follows:8.We separated informally in or about early 2019 however remained living together until 3 February 2020, when [Ms Sandhu] left the former matrimonial home with both our children. I consider 3 February 2020 to be the date of our final separation. Between early 2019 and 3 February 2020, we continued to intermingle our finances, continued to jointly contribute to expenses and continued to socialise, organise events at our home, and attend cultural events together. The only reason I say we informally separated is because [Ms Sandhu] sent me an email titled Separation Notice in early 2019. The issue was not otherwise addressed in cross-examination, and it is unnecessary to resolve. In 2007, the parties relocated from Country D to the United Kingdom. The parties then relocated to Australia in or about 2010. The wife contends that neither the husband nor herself had any assets of significance at the commencement of the marriage, while the husband deposes that he provided a greater initial financial contribution of approximately $53,000. The husband was employed full time throughout the marriage until about 2015, when he set up a business as a sole trader. He was self-employed for the last few years of the marriage through this business. The wife was employed full time throughout the marriage with the exclusion of periods around the birth of the children. The parties agree in their evidence that the husband earned more than the wife. The parties’ daughter, X, was born in 2008 and is 17 years of age, while the parties’ son, Y, was born in 2012 and is 13 years of age. Another child of the relationship, W, was born in 2006 and passed away when she was an infant from a medical condition. The parties bought and sold a number of properties over the course the relationship. Six properties were purchased in Country D and four were purchased in Australia. In 2013, the parties acquired M Street, Suburb N (the “Suburb N property”) for $575,000 in joint names funded by way of savings and a mortgage. In 2014, the parties acquired LL Street, Suburb KK (the “LL Street property”) for $510,000 in the husband’s sole name. In 2015, the parties acquired JJ Street, Suburb KK (“JJ Street property”) for $630,000 in their joint names and in 2018, the parties acquired GG Street, Suburb HH, Region NN (the “Region NN property”) for $818,000 in joint names. Each purchased was funded from modest savings and a substantial mortgage. The wife contends that she was a victim of family violence perpetrated by the husband during the course of the marriage that made her contributions both during the marriage and post-separation significantly more arduous. She details a history of family violence within the relationship. The husband denies perpetrating family violence. He says:60.I deny that there was any conduct perpetrated by me during our marriage, which made [Ms Sandhu's] parenting contributions, or financial contributions more difficult. …119.I do not currently know what family violence [Ms Sandhu] says she was subjected to, to the extent that she says she should receive a larger percentage of our property pool as [Ms Sandhu] says in her submissions that she will specify what this is at a later stage. I can only assume, that despite what happened in our parenting proceedings, and having had the benefit of reading His Honours Judgment, and particularly paragraphs 33, 66, 69, 80, 81, 82 and 118, [Ms Sandhu] maintains these serious allegations. …121.On that basis, I want to make it clear that I have never at any stage sexually assaulted [Ms Sandhu] or forced her to have sex with me. I have never held her down on a bed, or threatened to hit her so that she would have sex with me. I have never threatened [Ms Sandhu] at all or behaved in a way which was intimidating or controlling. I have never had sex with or penetrated [Ms Sandhu] in such a way to cause her to bleed, nor have I observed her crying after sex. I have never hit, slapped or punched [Ms Sandhu] or in any other way physically assaulted [Ms Sandhu]. I have never abused her or made […] discriminative comments. I have not controlled what she wore, where she worked, who she socialized with or what she did with her free time. I deny being financially controlling and maintain that [Ms Sandhu] had full access to and control over any joint accounts, including offset accounts and mortgage accounts throughout our marriage. I have never threatened to destroy, or destroyed any of our property, and I would never do so and in particular not to defeat her claim in the family law proceedings. …124.I accept that a Final ADVO was made [in] 2015 against me, protecting [Ms Sandhu], following my mother and [Ms Sandhu] having an altercation which I stepped into to stop it. I have given evidence about this already. I maintain that I did not assault [Ms Sandhu] and that I consented to the ADVO on a without admissions basis as I did not want to make [Ms Sandhu] go through the process of giving evidence in Court, or my mother, and simply wanted to forget the whole incident, so our family could move on.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given these matters, I assess they call for a further adjustment of 7 per cent to the wife.CONCLUSION Given the above findings, the parties’ assets will be divided as to 60 per cent to the wife and 40 per cent to the husband. Considering the contributions of the parties and the matters referred to under s 75(2) of the Act, I am satisfied that a division in those percentages is just and equitable recognising as I do the mathematical effect in dollar terms of such a division. As identified earlier in these reasons, each party sought to retain the Region NN property. If the Region NN property and its mortgage were removed from the pool of assets, then the net balance of the asset’s totals $3,068,921.13. A division of those assets as to 60 per cent to the wife and 40 per cent to the husband will see the wife receiving assets having a value of $1,841,353. The wife currently holds net assets including addbacks and superannuation as referred to in the pool of assets together with the balance of the funds in the offset account (Item 7) and the account in Country D (Item 29) totalling $1,378,134. Consequently there would need to be a payment by the husband to the wife of $463,219. There will be insufficient equity in the Region NN property to provide for that payment to the wife where, according to the balance sheet, its equity is approximately $374,000 before costs of sale and the agreement that $280,000 be retained to meet capital gains tax and tax on the Country D properties (Exhibit 27). There is no evidence before me that the husband has the capacity to make a payment of that magnitude to the wife. If the wife were to retain the Region NN property with its mortgage, then the sum payable by the husband will correspondingly reduce. On balance I am satisfied that the justice and equity of the case calls for the adoption of such an approach. The net pool of assets including the Region NN property is $3,443,272. A 60 per cent division of that pool to the wife is $2,065,963. If the wife retains her property and the Suburb N and Region NN properties subject to their mortgages, she will have assets having a value of $1,752,485 and so there will need to be a payment by the husband to the wife of $313,478. To give effect to my findings, I propose to order the husband within 90 days to make a payment of $313,478 to the wife simultaneously with the wife transferring to the husband the JJ Street property. In the event he does not, then orders will be made for the sale of the JJ Street property.WHETHER THE PROPOSED ORDERS ARE JUST AND EQUITABLE I am satisfied, having regard to the length of the parties’ relationship, the respective contributions of the parties and the matters under s 75(2) of the Act, that the division referred to above in percentage and dollar terms represents a just and equitable determination.DISPOSITION In light of the above matters, I propose to make orders to give effect to these reasons.

Ratio Decidendi

Legal Principle Established

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