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
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…
Continue reading Bhasin & Bhasin (No 3)
Sign in free to access the full text
- AGLC
- Bhasin & Bhasin (No 3) [2024] FedCFamC1F 30
- Case
- [2024] FedCFamC1F 30
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the valuation of the husband's assets in Country J post-separation, the division of the superannuation pool, and the allocation of the Suburb D property. The court had to consider the husband's significant income earning capacity, the wife's recent return to employment, and the husband's cessation of contributions towards the child's needs. The court also had to determine whether the husband's non-participation and failure to make discovery warranted a cautious approach regarding his superannuation entitlements in Country J.
In its reasoning, the court acknowledged the husband's significant income and the wife's recent return to employment. The court noted the husband's professional sports income of over $900,000 in the 2021 financial year, but also highlighted his failure to provide updated information regarding his income. The court decided to use the husband's own figures from August 2021 for calculating the pool, with the understanding that any increase in the value of his assets post-separation would be retained by him. The court found that the wife's superannuation entitlements substantially accumulated before the marriage, and that the husband could not be said to have contributed to them. The court also found that the wife made all contributions to the superannuation pool.
The court ordered that the wife have leave to proceed on an undefended basis, that the husband pay the wife the sum of $2,514,806 within 21 days, and that the husband transfer his right, title and interest in the Suburb D property to the wife. The court also appointed the wife as Trustee for the Sale in the event of non-compliance by the husband. The court further ordered the division of the tangible and superannuation pools, and the allocation of personal properties, savings, and other entitlements between the parties.
The court's final orders provided for the division of the tangible and superannuation pools, the allocation of personal properties, savings, and other entitlements between the parties, and the cessation of further proceedings between them. The court noted that the wife was granted leave to proceed with her application on an undefended basis, and that the parties intended for these orders to finally determine their financial relationship and avoid further proceedings.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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.