Bhasin & Bhasin (No 3)
[2024] FedCFamC1F 30
•2 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bhasin & Bhasin (No 3) [2024] FedCFamC1F 30
File number: MLC 6473 of 2021 Judgment of: CARTER J Date of judgment: 2 February 2024 Catchwords: FAMILY LAW – PROPERTY – Leave to proceed undefended – Where the husband resides overseas and has declined to participate in these proceedings – Where the husband has not filed material in these proceedings for over two years – Where there is no evidence adduced by the husband as to the value of his initial contributions – Where the husband has a significant income earning capacity – Where the wife remains wholly responsible for the parties’ child – Orders made. Legislation: Family Law Act 1975 (Cth) ss 75(2), 79(4) Cases cited: Aleksovski v Aleksovski (1996) FLC 92-705
Bevan v Bevan (2013) 279 FLR 1
Dickons v Dickons (2012) 50 Fam LR 244
Stanford v Stanford (2012) 247 CLR 108
Division: Division 1 First Instance Number of paragraphs: 50 Date of hearing: 29 January 2024 Place: Melbourne Counsel for the Applicant: Mr Schmidt Solicitor for the Applicant: Lander & Rogers The Respondent: Litigant in person (did not participate) ORDERS
MLC 6473 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BHASIN
Applicant
AND: MR BHASIN
Respondent
ORDER MADE BY:
CARTER J
DATE OF ORDER:
2 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The wife has leave to proceed on an undefended basis.
Payment to the wife
2.Within 21 days the husband pay to the wife the sum of $2,514,806.
Suburb D property
3.The husband forthwith do all acts and things and sign all such documents as may be required to transfer to the wife, at her expense, all of his right, title and interest in the real property situate at M Street, Suburb D in State of Victoria more particularly described in Certificate of Title Volume … Folio … (“the Suburb D property”) and the wife refinance any loans secured against the property into her sole name.
4.In the event the wife is unable to refinance any loan secured against the Suburb D property into her sole name and/or the husband does not comply with any of his obligations to transfer the Suburb D property to the wife or fails to do any act or thing required of him in accordance with these Orders necessary to facilitate the transfer of the Suburb D property, and such non-compliance is continuing after seven days, the following provisions will apply:
(a)the wife be and is hereby appointed as Trustee for the Sale to sell the Suburb D property (“the sale”) pursuant to section 80(1)(e) of the Family Law Act 1975 (Cth), and the wife (as Trustee for the Sale) forthwith do all acts and things and sign all such documents as may be required to cause the sale of the Suburb D property in accordance with these orders; and/or
(b)the wife be appointed to execute any and all further documents as may be necessary on behalf of the Husband necessary for the purposes of effecting the sale of the Suburb D including but not limited to signing any further State Revenue Office (digital duties) forms required to be completed by the husband to effect settlement of the sale and the wife be authorised to participate in the PEXA conveyancing system on behalf of the husband.
5.In the event of the sale, upon settlement of the sale the proceeds be applied as follows:
(a)firstly, to pay all costs, commissions and expenses of the sale;
(b)secondly, to discharge the mortgage encumbering the Suburb D property and any other encumbrance affecting the Suburb D property;
(c)thirdly, the balance then remaining, to the wife.
6.Pending transfer, refinance or sale:
(a)any loan secured against the Suburb D Property including but not limited to the mortgage secured against the property in favour of E Bank as and when such repayments are due and payable;
(b)any rates assessments and home and contents insurances for the Suburb D property as and when such payments are due and payable;
(c)the husband be restrained by injunction from transferring, encumbering, assigning or otherwise dealing with the Suburb D property without the express written consent of the wife or further order.
Wife’s entitlements
7.The wife retain for her sole use and benefit absolutely, and the husband relinquish any interest he may have in:
(a)the Suburb D property;
(b)the payment pursuant Order 2 hereof;
(c)her superannuation entitlements and all other employment related entitlements and benefits;
(d)the furniture, chattels, and personal belongings in her possession;
(e)all her personal savings, jewellery, and personal effects;
(f)contents of all bank accounts in her sole name; and
(g)any and all inheritances, gifts or other monies received from family members or friends to date or as may be received in the future.
Husband’s entitlements
8.The husband retain for his sole use and benefit absolutely, and the wife relinquish any interest she may have in:
(a)his real properties in Country J, including:
(i)N Street, City H;
(ii)P Street, Suburb Q;
(iii)R Property, City S, Region T; and
(iv)U Property, City H;
(b)his interest in the business known as V1 Company or V2 Company and V3 Company;
(c)his motor vehicles, including:
(i)Motor Vehicle 1;
(ii)Motor Vehicle 2;
(iii)Motor Vehicle 3;
(d)his superannuation entitlements and all other employment related entitlements and benefits;
(e)the furniture, chattels, and personal belongings in his possession;
(f)all his personal savings, jewellery, and personal effects;
(g)his share and investment portfolios;
(h)contents of all bank accounts in his sole name; and
(i)any and all inheritances, gifts or other monies received from family members or friends to date or as may be received in the future.
Miscellaneous
9.Unless otherwise specified in these Orders:
(a)each party be solely entitled to retain all property in the possession of that party;
(b)each party be solely liable for and indemnify and keep indemnified the other against all liabilities encumbering any item of property to which that party is entitled unless otherwise specified;
(c)each party forego and abandon any claim they may have to any superannuation or work related benefits or entitlements belonging to or earned by the other;
(d)life insurance policies remain the sole property of the owner named in the policy;
(e)any joint tenancy in any real or personal estate be expressly severed;
(f)each party release the other from any and all personal debts owing or alleged to be owed from the one to the other, or to members of the other's family; and
(g)each party remain solely liable for and indemnify the other with respect to any credit card and/or taxation liabilities owed in their respective sole names.
Service upon the husband
10.The wife be at liberty to effect service upon the husband by email to …@....
Applications dismissed
11.All extant applications are otherwise dismissed and the matter is removed from the list of active cases.
AND THE COURT NOTES THAT:
A.The wife was granted leave pursuant to rule 1.33(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to proceed with her application on an undefended basis.
B.Pursuant to rule 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Court may vary or set aside a judgment or order made in the absence of a party.
C.Pursuant to section 81 of the Family Law Act 1975 (Cth), the parties intend that these orders shall, as far as practicable, finally determine the financial relationship between them and avoid further proceedings between them.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
The application before the Court is that of the wife, filed 11 January 2024, being her Amended Initiating Application. She seeks orders in relation to property only.
Final parenting orders were made on 5 December 2023, on an undefended basis. On that day, I also set aside a Financial Agreement, and made orders, inter alia, that the wife file an Amended Initiating Application and affidavit in support regarding the orders sought pursuant to s 79 of the Family Law Act 1975 (Cth). I further ordered the wife to serve the husband, and gave the wife liberty to seek to proceed on an undefended basis this day in the event the husband failed to attend the hearing.
He has not attended. He has not filed any documents.
LEAVE TO PROCEED UNDEFENDED
The history of the husband’s involvement in – and then withdrawal from – these proceedings was set out in my reasons delivered on 5 December 2023.
The wife has attended to serving a copy of those orders and my reasons on the husband, via email, together with copies of her Amended Initiating Application and affidavit in support. Those documents were served on 5 December 2023 and 11 January 2024 respectively.
The husband continues to reside in Country J.
The husband was forwarded a Microsoft Teams link to his email address to attend the hearing before me on 29 January 2024. He has previously attended court hearings via Microsoft Teams. He did not attend on 29 January 2024. He was not physically present at Court, and did not respond when he was formally called outside the court room. He had not contacted the Court in response to the Microsoft Teams invitation.
I am satisfied the husband knew of the hearing on 29 January 2024 and elected not to attend. I am also satisfied that he knew the precise orders sought by the wife on a final basis, and that the matter could proceed undefended if he failed to appear.
The husband has refused to participate since 20 February 2023, being the last occasion he was present at Court. Regrettably I understand he is also no longer participating in video calls with the parties’ child. Nor has he travelled to Australia to see his son in accordance with my orders made 5 December 2023.
The proceedings have been on foot since 11 June 2021. They must come to a conclusion. The husband has been provided with opportunities to attend Court and participate in these proceedings but has declined to do so.
In all the circumstances I am satisfied it is appropriate that the matter proceed on an undefended basis. The orders I made will again be served on the husband, and he has his rights pursuant to rule 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
ASSETS, LIABILITIES AND FINANCIAL RESOURCES AS AT THE DATE OF FINAL HEARING
I find the asset pool is comprised as follows:
ASSETS
M Street, Suburb D – joint names
$1,325,000
N Street, City H – apartment in City H in the husband’s name
$309,091
P Street, Suburb Q – an apartment in City H; and R Property, City S, Region T – a rural property in the husband’s name
$307,636
U Property, City H – a property in the husband’s name
$454,545
Commonwealth Bank account in wife’s name
$15,000
Bank accounts (W Bank; Y Bank; and the Z Bank) in husband’s name
$189,491
Fixed Deposits in husband’s name
$1,076,364
Mutual Fund in husband’s name
$365,818
V1 Company/V2 Company in husband’s name
$249,921
V3 Company in husband’s name
$0
Motor Vehicle 1 and Motor Vehicle 2 in husband’s name
$75,616
Motor Vehicle 3 in husband’s name
$263,636
AA Finance & BB Finance in husband’s name
$1,489,091
Part property distribution to the wife pursuant to Order 3 of the orders made 9 September 2021
$662,398
TOTAL ASSETS
$6,783,607
LIABILITIES
E Bank mortgage (secured by Suburb D property) in joint names
-$825,638
Motor Vehicle 3 loan in husband’s name
-$263,636
ANZ credit card in husband’s name
-$15,000
TOTAL LIABILITIES
-$1,104,274
NET POOL (excl. super)
$5,679,333
SUPERANNUATION
Wife’s Superannuation Fund 1
$67,300
The values attributed to the assets and liabilities in the husband’s name reflect the values the husband ascribed to those assets in his sworn Financial Statement filed 7 August 2021. The husband has not sought to provide the wife or the Court with any updated evidence regarding his financial position. In the absence of any evidence of change to the husband’s financial circumstances, I have adopted those values. I note that includes businesses in the husband’s name, and properties in his sole name which have not been independently valued.
I have excluded the husband’s life insurance policy which the wife had included in her table of assets. It has not, as far as I am aware, vested. It does not seem to me that it is appropriate for obvious reasons to include it as an asset.
CC Valuers provided a valuation of the property at Suburb D in their report dated 1 October 2021 of $1,325,000. CC Valuers were jointly appointed by the parties in accordance with orders made on 10 August 2021. Although that report is somewhat out of date, neither party has sought to provide the Court with any more recent evidence of the valuation of that asset. The wife acknowledges the property has likely increased in value and suggested the value of $1,400,000 be adopted by the Court for the purposes of these proceedings. In my view, the correct approach is to use the value arrived at by the single expert, rather than using an arbitrary figure calculated by the wife. At any rate, the value of the home is then somewhat contemporaneous with the figures the husband provided in relation to the assets in his control.
Pursuant to orders made on 9 September 2021, the wife received a part property payment of $662,397.50, from the proceeds of sale of a property in Suburb C. Counsel for the wife did not include that in the pool of assets as contended by his client. The wife deposed she used the part property settlement for legal fees, mortgage repayments, school fees, purchasing a car for one of her daughters and daily expenses. She did not particularise the amounts she used for each of those expenses.
I am satisfied it is appropriate to notionally addback that part property payment – particularly as the wife has used the funds in part for legal fees and to purchase a car for her daughter. I was not addressed as to why the payment should no longer be treated as a part property distribution.
There is no evidence that the husband has superannuation, or any like entitlement in Country J. The only superannuation is that of the wife, which was substantially accumulated before the parties’ marriage.
IS IT JUST AND EQUITABLE THAT AN ORDER BE MADE?
I must be satisfied that it is just and equitable for an order to be made before I can make any order altering the parties’ interests in their assets; Stanford v Stanford (2012) 247 CLR 108. This is an enquiry separate from determining what order should be made.
If I am satisfied it is just and equitable for an order to be made, I am then empowered to make such order as I consider appropriate taking into account a number of factors as set out in sections 79(4) and 75(2) of the Family Law Act, insofar as they are relevant.
Their Honours in Stanford said the expression “just and equitable”;
36.… is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.
There is no presumption that the parties’ entitlements in the existing asset pool should be altered, or that one party has the right to have the property of the parties divided between them only on the basis of the considerations in s 79(4).
In the extant matter, the husband controls the majority of assets, and earns a very significant income. The parties were married for nine years, and there is one child, who is cared for, and now financially provided for, solely by the wife. She is on a modest income, having been out of the paid work force during the marriage, to attend to parenting and homemaker duties substantially in the absence of the husband. The parties are joint owners of the Suburb D property, which is subject to a mortgage also in joint names.
If no orders are made the wife would be left with only minimal savings, a joint interest in the Suburb D property, the part property distribution made to her in 2021, and modest superannuation. No consideration could be given to the role the wife will continue to play in caring exclusively for the parties’ child.
In my view, this is one of the “vast majority of cases” referred to by the plurality of the High Court in Bevan v Bevan (2013) 279 FLR 1 at [164] in which the requirements of s 79(2) of the Family Law Act are fairly readily satisfied. It is plainly just and equitable to make an order pursuant to s 79 of the Family Law Act in these proceedings for a division of property between the parties.
SECTION 79(4) OF THE ACT
In determining what orders are to be made pursuant to s 79(4), I must weigh and assess all contributions made the parties throughout their marriage and “somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship”; per Kay J in Aleksovski v Aleksovski (1996) FLC 92-705 at [90].
The Full Court in Dickons v Dickons (2012) 50 Fam LR 244 at [21] said that “…the requirements of the section are met by approaching the assessment of contributions holistically…” by analysing the contributions of all types, and by reference to the particular circumstances of that particular relationship. I am not performing a mathematical or accounting exercise, see Dickons at [25], and little is gained by attaching percentages to each component of contributions. At [24] their Honours in Dickons said:
24.…the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship…
Initial contributions
The parties married in 2012. At that time, the wife had nominal assets, being a car and minimal savings.
According to the husband’s affidavit filed 7 August 2021 he had three properties in Country J, being the two apartments in City K and a block of rural land. He does not depose what equity (if any) he had in those assets at the commencement of the relationship. I note that in the recitals to the Financial Agreement that the parties previously executed it is recorded that the value of those assets was “unknown” at the commencement of the parties’ relationship. Those properties, as at August 2021, some nine years after the parties’ marriage, represent about 11 per cent of the non-super pool.
Contributions during the marriage
The husband worked throughout the marriage, and it is agreed that he contributed financially to the wife and the parties’ child. The husband also contributed financially to the wife’s daughters from her previous marriage, as he paid her an allowance which the wife conceded she used to meet her living expenses, and those of all three of her children.
The husband travelled to Australia from time to time – for about two weeks each year. When he was not present in Australia, the wife was the sole carer for the parties’ child, and the sole homemaker. This enabled the husband to remain focused on his very lucrative career in sports.
I accept the wife’s evidence that she was the primary carer for the child when the husband was in Australia, or when the wife travelled overseas to visit the husband. Indeed, she was engaged full time as a parent and homemaker during the relationship.
There is no evidence that either party received gifts or inheritances.
Contributions post-separation
The parties separated in about August 2020. The wife and child had been living in Country J for the previous eight months, having been unable to leave during the height of the COVID-19 pandemic. Upon returning to Australia, the husband continued to provide financial assistance, on a reduced basis – including contributing to the mortgage and to the child’s school costs – until around April/May 2023. The husband ceased providing any financial assistance at that time. The wife continued in a homemaker and parent role, providing all the care for the parties’ child since separation.
I have no evidence as to what contributions the husband has made to the assets in Country J post-separation. At any rate, I have used the husband’s own figures from August 2021 (less than 12 months post separation) in calculating the pool. If he has increased the value of his assets since August 2021, he will retain those benefits.
RELEVANT CONSIDERATIONS PURSUANT TO SECTION 75(2) OF THE ACT
The parties are both in good health. The wife is 46 years old and the husband 38 years old.
The wife has recently returned to paid employment. She deposes to earning approximately $60,000 per annum. She says she is unable to meet the costs of the private school fees, mortgage, and living expenses and has had to withdraw the child from his school.
The husband is a professional sportsperson. He deposed in his affidavit filed 7 August 2021 that he earned over $900,000 from playing sport professionally in the 2021 financial year and that the income from that was “likely to end within a year or two”. However, he has not provided updated information to the Court regarding his income, which according to his Financial Statement filed 7 August 2021 was $2,669,992 from all sources. That is the same income that was recorded in the recitals to the Financial Agreement executed by the parties in August 2022. It is plain that the husband’s income eclipses that of the wife’s.
It is understood the husband continues to play sport professionally.
The husband has ceased all contributions towards the parties’ child in April/May 2023, leaving the wife wholly financially responsible to meet all the child’s needs since that time.
The wife also remains solely responsible for the child’s physical day to day care.
SUPERANNUATION
Counsel for the wife asserted superannuation should be dealt with separately. He submitted:
(a)the wife’s superannuation entitlements substantially accumulated prior to the parties’ marriage. She made no contributions to it through her employment until post‑separation;
(b)the husband accordingly could not be said to have contributed to the wife’s superannuation entitlements; and
(c)it is not known whether the husband has superannuation or like entitlements in Country J. He has not deposed to having any such entitlement, but in light of his non‑participation and failure to make discovery, the Court should be cautious of accepting that he has no such equivalent entitlement.
There is force in counsel’s submissions. This is particularly so given the modesty of the wife’s entitlement, and the husband’s significantly greater income earning capacity.
ASSESSMENT OF CONTRIBUTIONS AND PROSPECTIVE NEEDS
Doing the best I can, on the limited evidence I have, and weighing all the factors, I am satisfied that the parties’ contributions are appropriately assessed as equal in relation to the tangible pool. I am also satisfied that the wife made all the contributions to the superannuation pool. The wife’s superannuation accumulated substantially before the parties were married. The growth in the wife’s superannuation over the course of the parties’ relationship did not come from employer contributions (or any contribution by the husband), but arose as a result of market forces.
Whilst the husband deposed to having assets at the commencement of the marriage, at no time has he deposed to what equity, if any, he had in those assets as at 2012. In the complete absence of that evidence, it would be inappropriate for me to arbitrarily assign or assume a dollar value for the husband’s initial contributions.
During the marriage, both parties worked hard in their respective roles – with the husband generating a significant income, providing for the wife, their child and her older children, and with the wife providing substantial care for the parties’ child, enduring extended absences by the husband whilst providing that care.
Post-separation, the husband continued to make financial contributions, but those ceased in April/May 2023. The wife continued to provide care for the parties’ child.
I am further satisfied it is appropriate for there to be an adjustment in the wife’s favour of a further 15 per cent in relation to the tangible pool, whilst making no adjustment to the superannuation pool. That means, in addition to the assets the wife will retain (being the equity in the home, her savings and the part property distribution made to her; totalling $1,176,760), the husband is to pay her a further $2,514,806. In addition to her modest superannuation, this means the wife will receive approximately $1,700,000 more from the pool that the husband. In light of the husband’s very significant earning capacity, I am satisfied that is appropriate, just and equitable.
Had I adopted a global approach and included superannuation in the pool, the cash payment of $2,514,806 to the wife together with the assets and superannuation she retains would amount to the wife receiving 65.4 per cent of the pool. Given the husband’s significantly superior earning capacity, the wife’s modest earning capacity, the husband’s lack of contribution to the wife’s superannuation entitlements, and the wife’s ongoing care for the parties’ child, I remain satisfied that would be an appropriate, and just and equitable division of assets, if calculated using a global pool.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 2 February 2024
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