Bhatt and Acharya

FAMILY COURT OF AUSTRALIA

BHATT & ACHARYA

[2018] FamCA 789

FAMILY LAW – PROPERTY – Whether the husband holds real estate in Trust for the wife – Where the parties separated over a decade before the property was acquired – Where the wife claims the husband absconded with considerable amounts of the parties’ joint wealth - Where there are written agreements which set out claimed debts owed between the parties and the ownership of the property – Where there are contradictory documents extant – Where the husband claims the agreements entered into were based on unconscionable conduct by the wife – Where the real estate is the subject of Supreme Court of New South Wales proceedings by the mortgagor – contributions of the parties – s 75(2) factors – whether there should be a superannuation splitting order.

Biltoft & Biltoft (1995) FLC 92-614
C & C [2005] FamCA 429,(2005) FLC 93-220,(2005) 33 Fam LR 414
In the marriage of Candlish and Pratt (1980) FLC ¶90-819
Gould & Gould (2007) FLC 93-333
In the Marriage of P (1985) 9 Fam LR 1100
Malpass & Mayson (2000) FLC 93‑061

Family Law Act 1974 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT:

Mr Bhatt

RESPONDENT:

Ms Acharya

FILE NUMBER:

SYC

5732

2015

DATE DELIVERED:

7 September 2018

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

15, 16 and 17 May 2018; 18, 19 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fowler

SOLICITOR FOR THE APPLICANT:

Mills Oakley Lawyers

ADVOCATE FOR THE APPLICANT:

Mr M / In person

SOLICITOR FOR THE RESPONDENT:

Forsters Solicitors

Orders

NOTE. In these orders reference to “the property” is a reference to the property owned by the husband at B Street, Suburb C, New South Wales.
The proceeding number …, commenced in the Supreme Court of NSW by the wife, against the husband, which proceeding was transferred to this court, is dismissed.
Within 14 days from the date hereof each party is to provide to my associate by email and to the other party, a written submission to support any cost order which is sought in relation to the Supreme Court of NSW proceeding. The submission to be no larger than two typed A4 pages in length. Each party to provide to my associate and the other party, any written response within 7 days of receipt of the others submission (that document to be no longer than one A4 page of typing).
I reserve the decision on any such cost application.
All orders made herein for the payment of interim spouse maintenance and interim order for payment of the mortgage and outgoings on the property are dismissed to the date upon which they stand paid.
Deduction of money to pay CGT
Prior to the completion of the sale of the property the husband is to obtain a written advice, from an accountant of his choice, stating the anticipated Capital Gains Tax (CGT), if any, which he will be required to pay on the sale proceeds of the property.
Upon obtaining the written advice from an account as to the anticipated CGT payment the husband is to provide a copy of same, by email, to the wife and the relevant officer of the Commonwealth Bank of Australia Ltd.
The husband is to ensure that no funds from the sale of the property are paid to him until the estimated figure for the payment of CGT has been obtained from an accountant and provided to the wife and the Commonwealth Bank of Australia Ltd. To that end the husband and wife are to do all things required of them by the Commonwealth Bank of Australia Ltd to be able to establish the interest bearing deposit account.
After provision to the Commonwealth Bank of Australia Ltd of the written advice as to the husband’s liability for CGT, the husband is to instruct a relevant officer of the Commonwealth Bank of Australia Ltd to deduct from the sale proceeds of the property, which would otherwise be payable to him, a sum of the same proportion as that stated to be the estimated CGT payment and cause those funds to be deposited in an interest bearing deposit, in the joint names of the husband and the wife, with the provision that each party is required to sign for any transaction on the account.
As soon as can reasonably be achieved after 30 June 2019, the husband is to cause his Income Tax Return for the financial year ended 30 June 2019, including the amount calculated as payable for CGT such tax arising only from the sale of the property, to be lodged with the Australian Tax Office. At that time, or such later time as may be required for the Australian Tax Office to assess the amount of CGT which the husband will be required to pay (should that assessment be required) the husband is to provide the wife with either a copy of his lodged income tax return for the 2019 tax year or a document emanating from the Australian Tax Office which states the amount of CGT to be paid, AND forthwith thereafter each of the husband and wife are to sign all documents necessary to cause the joint account, created pursuant to these orders, to be operated upon so that a payment is made to the Australian Tax Office to meet the husband’s liability for the calculated CGT and the balance of the account, if any, including accumulated interest, to be paid to the parties in equal proportions.
In the event that the fund in the interest bearing deposit account, created by these orders, is insufficient to meet the actual liability of the husband for the payment of the subject CGT, then each of the parties is to contribute to any shortfall in equal shares.
The husband is to forthwith provide to the Commonwealth Bank of Australia Ltd (as mortgagee in possession of the property pursuant to orders of the Supreme Court of NSW suit … made … 2018) an irrevocable authority requiring that the Commonwealth Bank of Australia Ltd pay all funds payable to him (after deduction of all funds owing to the Commonwealth Bank of Australia Ltd under its mortgage and judgment obtained against the husband), following the sale of the property, as follows:
(a)To pay the sum required to meet the husband’s anticipated CGT liability to the account created pursuant to order 9 hereof.
(b)To pay the balance of the fund in equal proportions to each of the husband and the wife. To enable this to be complied with each of the parties is to provide to the relevant officer of the Commonwealth Bank of Australia Ltd, forthwith, details of a bank account into which their share of the fund is to be paid.
The husband is to forthwith provide to the relevant officer of the Commonwealth Bank of Australia Ltd a copy of the court orders together with the direction/authorisation to pay funds as the orders of this court require. At the time of providing those documents to the Commonwealth Bank of Australia Ltd the husband is to request from the Commonwealth Bank of Australia Ltd, a written acknowledgment that the bank will pay the funds which will ultimately be payable to the husband from the sale of the property as he has authorised. The husband is to provide to the wife a copy of such acknowledgment, or refusal to comply, should that be the case, as soon as it is received by him.
In the event that the Commonwealth Bank of Australia Ltd refuses to accept or act upon the irrevocable authority from the husband to pay the funds payable to him, as required by these orders, the husband is to immediately advise the wife of such circumstance and each party has leave to relist the matter for the purpose of seeking an order against the Commonwealth Bank of Australia Ltd to compel such application of the funds.
Each of the parties is otherwise declared the owner, as against the other, of all other property which stands in their sole name or is within their personal possession or control and which is otherwise not dealt with by these orders.

Payment of outstanding costs order

Immediately upon receipt of her portion of the sale proceeds of the property the wife is to pay to the husband the sum of $24,047.22 being the assessed costs in relation to the cost order made against the wife on 22 March 2017.

Superannuation Splitting Order

Declaration that L Super as trustee of the L Signature Super (‘Plan’) - #05 (“the trustee”) has been accorded procedural fairness in respect of the following superannuation splitting and ancillary orders.
Order that these orders are binding upon the trustee.
Declaration, pursuant to s 90MT(2) of the Family Law Act, that for the purpose of these orders the value of the husband’s interest in the L Signature Super (‘Plan’) – #05 is determined to be $348,857 in accordance with the Family Law (Superannuation) Regulations 2001.
Order that a base amount of $104,657 is allocated, as required by s 90MT(4) of the Family Law Act, to the wife (Ms Acharya) out of the husband’s (Mr Bhatt) interest in the L Signature Super (‘Plan’) – #05.
Order, in accordance with s 90MT(1)(a) of the Family Law Act, that:
(a)The wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b)The husband’s entitlement to payments out of his interest in the L Signature Super (‘Plan’) – #05, is correspondingly reduced by force of this order.
The trustee shall do all such acts and things and sign all such documents as may be necessary to:
(a)Calculate, in accordance with the requirements of the Family Law Act and the Family Law (Superannuation) Regulations 2001, the entitlement created for the wife pursuant to these orders; and
(b)Pay the entitlement whenever the trustee makes a splittable payment out of the husband’s interest in the L Signature Super (‘Plan’) – #05.
The orders requiring the Trustee of the L Signature Super (‘Plan’) – #05 to take action, shall have effect from the operative time, and for that purpose the operative time shall be 4 business days from the date of these orders.

Spouse Maintenance Order

The wife’s application for spouse maintenance is dismissed.

Costs

The husband is to serve on the wife, by email, on/or before the expiration of seven days from the date hereof, a detailed claim for costs incurred in opposing the application by the wife to the Full Court which gave rise to the order made by Ryan J on 21 September 2016 requiring the wife to pay the husband’s costs. The wife is to serve any objection to the husband’s claim for costs within 14 days of receipt of same. In the absence of any objection being served the amount claimed by the husband is to be paid by the wife to the husband forthwith upon receipt of her share of the proceeds of the sale of the property as otherwise provided for herein, or within seven days, whichever is the earlier.
In the event the wife serves a notice of objection to the costs claimed by the husband arising from the order of 21 September 2016, then the husband is to forthwith arrange for the bill of costs to be assessed and once assessed serve the result upon the wife by email. The assessed cost amount is to thereafter paid by the wife to the husband forthwith upon receipt of her share of the proceeds of the sale of the property as otherwise provided for herein, or within seven days, whichever is the earlier.
The matter is listed for hearing of the cost applications of the husband and any application for costs the wife may seek, on 27 September 2018. Submission on any cost application pursued are to be in writing and no more than one A4 page for each cost order sought.
Each party and the Commonwealth Bank of Australia Ltd has leave to relist this matter for the purpose of obtaining or refining any of the machinery orders made herein or for any further order which is necessary to enforce the substantive orders made herein. Such application is to be listed on short notice before the court.
All outstanding applications are otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bhatt & Acharya has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5732 of 2015

Mr Bhatt

Applicant

And

Ms Acharya

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court is a hearing for the final determination of property matters between Mr Bhatt (“the husband”) and Ms Acharya (“the wife”).
These proceedings for property settlement were commenced by the husband in 2015, some 17 years after the parties’ final separation in 1998, and 14 years after their divorce in 2001. Both parties consented to leave being granted to permit the proceeding being heard pursuant to s 44(3) of the Family Law Act 1975 (Cth) as they were both out of time to seek property orders.
One of the effects of the lengthy delay in commencing the proceeding has been the lack of available bank and other records to support each party’s case.
The matter was heard on 15 to 17 May 2018 (3 days) and had not concluded in that time. The matter had been listed for three days only as that was the time the parties informed the court the case would require. Each party was represented for the hearing on those days.
It was important that the matter was concluded in the allocated time as the husband, who lives in Asia, came to Australia specifically for the hearing. When the matter required further hearing days the only suitable days were allocated for 18 and 19 June 2018. Those dates were allocated with the consent of the parties in the knowledge that the husband would attend by telephone from Asia and be represented in the hearing by his lawyers, who would be present in court. At the time of the adjournment of the hearing on 17 May 2018 all the witnesses in the case had given their oral evidence with the exception of the wife, whose cross-examination was still proceeding.
When the hearing completed on 17 May 2018 (the third day) I made a note that I was satisfied at that time each party had produced/provided what they have been able to find or subpoena in the form of documentary support for their cases. That understanding changed at the conclusion of the wife’s cross-examination.
On 18 June 2018 the wife was self-represented. She informed the Court that she could no longer afford to engage her solicitor. The wife had sent to the court, and to the husband’s solicitors, on Sunday 17 June 2018, an email in which she requested permission to be able to complete her cross-examination by telephone as the husband had been permitted to attend by phone for that day. The email exchange between my Associate (at my direction) and the parties about this aspect of the wife’s request is set out in Appendix A to this judgment.
Given that each party’s credit is such an important aspect of the determination of the hearing, I refused the wife’s request to attend by telephone and the result was that the wife did attend at court, arriving at 11.00 a.m. She remained at court until almost 5.00 p.m. when the hearing concluded on 18 June 2018.
As part of the wife’s re-examination or otherwise part of her case, she sought to tender a series of documents which she conceded had not been put to the husband in cross-examination and which had not been attached to the wife’s trial affidavit. Further, in relation to five documents, or groups of documents the wife sought to tender, she informed the Court she had obtained those documents following the May hearing dates. The documents concerned were obtained from statutory bodies such as ASIC and were available to be obtained prior to the May hearing dates and when the wife prepared her trial affidavit. In her defence for failure to obtain the documents at an earlier time so that they could have been attached to her trial affidavit or tendered prior to the husband giving oral evidence, the wife told the Court that her trial affidavit had to be prepared in a hurry because it was late. That affidavit was filed on 1 May 2018 and although it shows on the front page that the wife’s address for service is her residential address, on the signature page it shows the affidavit was prepared/settled by the deponent and her lawyer who is named as Mr M. Although Mr M represented the wife in the May hearing he was not present on 18 or 19 June 2018 to state whether he had actually prepared or settled the affidavit as opposed to the wife merely inserting his name in the document.
One of the documents which the wife sought to tender was a document created by her. She said she has book keeping skills and did the books for the business the parties had conducted in Sydney in the 1990s, prior to their move to India. She claimed she had analysed the breakdown of deposits and withdrawals from the husband’s Commonwealth Bank Viridian Account between 27 April 2009 and 31 July 2012. The document, which was marked as MFI 4 for consideration of whether the document could be accepted into evidence, has printed on the top of the first page “created: 13 June 2018 6:02PM”.
The wife said that the document she now sought to tender was similar to or an enlargement on the document marked as MFI2 in the May hearing. There the wife’s solicitor sought to tender the document which he said was a “reconciliation of the viridian Account 28 April 2009 to 4 July 2012”. The document was not tendered as the husband had not been through the document to determine if he agreed the document was an accurate statement of the source documents. The court was informed the wife had prepared the document herself.
I understand the document is the wife’s attempt to show background or further information about the credits and withdrawals or transfers made from the account in addition to the evidence provided by each party in their trial affidavit or other documents tendered in the hearing. However, the document contains contentious statements such as describing all transactions as “Loan from [Ms Acharya]”. In any event the husband has said, through his lawyer, that he does not accept the document is an accurate description of the particular transactions created on the account during the relevant period.
Although the document might have been provided as an aide memoire for the court, it is unlikely to be of assistance greater than the source documents if they are in evidence.
There were some documents which the wife sought to tender at the close of her evidence, which could have been objected to by the husband but were not, and accordingly were tendered subject to relevance.
In considering whether to allow the wife to tender documents at the end of the hearing, any prejudice to the husband of allowing that to occur has to be considered. Further, the history of how the matter came to be listed for hearing is a relevant consideration.
So far as the history of the litigation is concerned, the following matters are relevant. At the heart of the case is an assertion by the wife that the property at B Street, Suburb C, although being legally owned by the husband, is in fact beneficially held for her. In the scheme of hearing applications which seek orders under s 79 of the Act the actual legal ownership of real estate often plays only a minor role. As the Act provides, it is the assessment and weighing of the contributions made to the assets and to the relationship which is the focus of the exercise. That is then passed over the lens of s 75(2) to determine if any further adjustment to the assessment of the parties’ contributions is required in order to reach a just and equitable outcome. In this case, however, the wife is seeking an outcome where the property at Suburb C is declared to be held upon trust for her and that property is then removed from consideration in the division of assets. Alternatively, it is the wife’s case that the husband received about AUD$900,000 worth of the parties’ assets when he liquidated their Australian assets in 1995 prior to his joining the wife in India where she was living. In essence the wife claims the husband failed to account to the wife for the receipt of and application of those funds. That case is denied by the husband.

The parties’ positions prior to the commencement of the hearing were very clear. The wife said the husband had reached agreements with her to repay debt (see exhibit W2) and had agreed to assist her to buy [the Suburb C] property (see exhibit W3). The husband’s position was that both those agreements had been signed by him under threat of being removed from his children’s lives and under great pressure from the wife. The husband denied he had received any greater sum from the liquidation of the Australian assets in 1995 than that fund which he transferred to his bank account in India (approximately AUD$236,720). The wife’s assertion is that he realised approximately AUD$900,000 and that he has used or hidden that money without her knowledge or consent (less the AUD$236,720 which the husband can illustrate, with documents, he transferred to India in 1995).
I have set out the detail of issue in order to show that each party, aided by their legal representatives, must have understood what they had to prove in this hearing to succeed in their case. Each had the opportunity, in the time leading to the hearing, to issue subpoenas to obtain documents to support their case, where their own records were deficient. I accept that both did present to the court, up to and including the conclusion of the third day of the trial, the product of the relevant documentary evidence, which their legal representatives considered would be required to provide as evidence.
This matter came to my attention in a Judicial Duty List on 19 March 2018, and I first heard it on 23 March 2018. On that day the parties were litigating about whether the husband should/could continue to meet the mortgage payment for the mortgage on [the Suburb C] house, together with a maintenance order made in favour of the wife. The mortgagee was pressing for discharge/payment of the outstanding mortgage and there was a clear threat of foreclosure should the mortgagee not be satisfied by payment of funds, or the entering into an arrangement satisfactory to the mortgagee. It was clear to me that the case had been in the court for a long time and had to be determined urgently if the wife was to have any prospect of retaining [the Suburb C] property, as she sought and if that was a proper outcome. In that circumstance I set the matter down for final hearing before myself. Each party was self-represented at that time. No application was subsequently made for the court to allocate more than three days to conclude the hearing. The matter was set down for hearing to commence on 15 May 2018. The husband, who attended the hearing on 23 March 2018 by phone, informed the Court he would be unable to travel to Australia, for the hearing, due to medical reasons.
The matter was again before me on 7 May 2018 to ensure readiness for trial and to deal with any outstanding matter which might interfere with the hearing commencing on 15 May 2018. On that day a number of orders and directions were made. Numerous subpoena were permitted to be issued. Clearly those were subpoena issued by each party in readiness for the hearing. It was noted that the husband was proposing to travel to Australia for the hearing. On 7 May 2018 the parties were each represented by a lawyer. Neither party informed the court that three days was insufficient to conclude the hearing.
One of the documents which the wife sought to tender was a valuation of the property in which the husband has an interest in India. This is a property he inherited with his sister. His sister is occupying the property.
On 7 September 2017, when the matter was before the Federal Circuit Court, Judge Boyle made orders for the parties to attend a conciliation conference. The order included the following:
At least seven days before the conciliation conference each party must send to the other and to the Registrar copies of:
(a) a market appraisal or valuation of any asset or financial resource, the value of which is in dispute, and valuations of any superannuation interests;
(b) if there is a significant discrepancy between the market appraisals obtained by the parties, a single expert valuation of all relevant property.
On 16 October 2017 Registrar Halbert recorded the following on the record. “This matter was listed before me today for a Conciliation Conference. Orders made by Judge Boyle on 7 September 2017 for obtaining valuations were not complied with. I note that the parties had settlement discussions but that the matter did not settle and is listed before Judge Boyle on 24 November 2017 at 9:30 AM for mention.”
When the matter was before me on 23 March 2018 and again on 7 May 2018 no order was sought in relation to the valuation of the Indian property. On 7 May 2018 an order was made for the appointment of a single expert witness to value the property at B Street, Suburb C.
Given the background information set out above addressing the parties’ preparation for trial and the Court’s directions for trial not being complied with, I considered it was not appropriate to permit the wife to rely on any further documents sought to be tendered by her at the conclusion of her case, other than those which were not opposed by the husband, or which had been properly provided to the husband prior to the commencement of the trial.

Background facts

The parties met and commenced a relationship in India in 1984 and were engaged to be married in 1987.
In 1988 the parties commenced cohabitation and were married in a religious ceremonial wedding in City N. The parties lived in the wife’s apartment in City O.
In 1989 the parties moved to Australia and lived in Melbourne. They were married in a civil ceremony in Australia the same year.
In 1989 the husband obtained employment as a manager and was earning a salary of AUD$30,000 per annum. The wife worked for a short time with Company P.
In 1990 the parties purchased a franchise business known as “Business Q” in Suburb R for AUD$200,000. The parties moved to Sydney to work in the business.
The husband asserts that Business Q was purchased with a loan of AUD$200,000 vendor finance or vendor guaranteed finance. The wife asserts that she paid a deposit of AUD$50,000 towards the purchase of the franchise and the remaining AUD$150,000 was a loan from the bank. She says that she had AUD$40,000 in savings and that she borrowed the remaining AUD$10,000 from her brother. (I note no affidavit was relied upon by the wife from her brother corroborating the advance. No explanation for that failure was provided by the wife).
The parties incorporated a company known as “S Pty Ltd.” on 18 June 1990 through which they operated Business Q. They were both equal shareholders and directors of that company.
In May 1991 the parties purchased a townhouse at Suburb T for AUD$182,500. The husband asserts that a loan was obtained from the National Australia Bank (“NAB”) for 95 per cent of the purchase price, which the wife disputes.
From 1990 to 1992 both the husband and wife worked at Business Q. They each earned an income of approximately AUD$50,000 or AUD$60,000.
In 1992 the parties’ child Mr D was born. He is now aged 25.
In 1992 or 1993 the parties borrowed funds from the NAB to pay out the debt owed on the purchase of the Business Q franchise. (I note the wife would say the loan from the Bank was refinanced.) At around the same time, the name of Business Q was changed to “Business U”.
In 1993 the parties purchased a block of vacant land at Suburb V for AUD$270,000. Construction of two dwellings commenced on this block in 1994. The wife deposed that the construction cost was a further AUD$296,528. Further funds were borrowed to fund the purchases.
In April 1994 the Suburb T property was sold for AUD$215,000. It is the wife’s evidence that the net proceeds of sale of the Suburb T property were applied to the Suburb V venture. There is an issue as to the amount of the net proceeds from the sale of Suburb T.
In December 1994 the parties moved into the second dwelling at Suburb V.
On 2 February 1995 the wife moved back to India. The day before leaving Australia, the wife signed a Power of Attorney authorising the husband to act on her behalf. The wife asserts that she and the husband had some AUD$140,000 in savings prior to her moving to India. This is disputed by the husband.
Following the wife’s departure from Australia in February 1995 the husband liquidated the parties’ Australian assets, including their superannuation, and transferred a net sum of 5,562,926 Indian Rupees (“INR”) (approximately AUD$236,720) to the parties’ joint W Bank account in India. It is the wife’s case that she did not consent to the parties’ joint assets in Australia being sold. The wife further asserts that the husband has not accounted for some further AUD$700,000 which she alleges he received from the sale of their assets and superannuation.
It is the wife’s case that the parties had built up wealth amounting to AUD$900,000 between 1989 when they purchased Business Q and 1995 when the parties left Australia to travel to India. It must be the wife’s case that all that wealth emanated from an initial cash asset of AUD$40,000 which was within her control. The husband’s evidence is that the net wealth of the parties was AUD$250,000 after liquidating all their Australian assets.
The first Suburb V residence was sold on 13 April 1995 for AUD$350,000.
In early 1995 the Business U was sold. The wife claims that the husband told her it was sold for some AUD$200,000. The husband denies that but was unable to recall any other figure as the net proceeds. No documents were produced to assist in the determination of that particular issue.
On 4 May 1995 the husband arrived in India. He says he used the funds from the W Bank account to purchase a home at Suburb X, City N (“the Suburb X property”), motor vehicles, and to establish a business. The funds were also applied to other household effects and living expenses. The wife acknowledges that the property in India was acquired, that the husband established businesses and that chattels were acquired. She does not accept the figures asserted by the husband.
The parties’ second child, Ms E, was born in India in 1995. She is now aged 23.
In August 1995 the second Suburb V unit sold for AUD$430,000. The wife says this was sold without her permission. The mortgage owing over the Suburb V properties was discharged.
In late 1995, in addition to the business in India, the husband opened up a further business in City N.
S Pty Ltd. (the company through which the parties operated Business U) was deregistered on 1 August 1997.
On 7 June 1998 the wife returned to Australia with the child Mr D. The husband remained in India with Ms E. The husband asserts that the parties’ return to Australia followed the demolition of one of the business premises that he was operating. He deposed that he sold the Suburb X property and other Indian assets at a loss.
The parties separated on 26 November 1998. The husband vacated the rental premises in Suburb C. The husband asserts that he left all the furniture with the wife and a sum of AUD$70,000. It is also his case that he commenced paying AUD$400 per week to the wife being child support.
Between November 1998 and 2002 the husband was employed in the Y Town and later in Z Town. During that time the children visited the husband on five occasions.
In early 2001 the wife moved to AA Town with the children. The children commenced attending school in AA Town. In March 2001 the wife returned to Sydney and the children remained in AA Town with the husband. The husband asserts that during that time he paid for the children’s private school fees and for the costs of a nanny to care for the children while he was at work. This was disputed by the wife.
The wife obtained full-time employment in April 2001. She stopped working when the children returned to her care in September that year.
The husband and wife were divorced on 7 November 2001.
In 2002 the husband took up employment in China, returning in late 2003.
The wife filed for bankruptcy and was declared bankrupt in January 2002. She was subsequently discharged in June 2003.
Between early 2002 and 2006 the husband made monthly child support payments to the wife of AUD$3,000. The wife was also receiving Centrelink payments at the time.
In November 2003 the husband commenced employment with J Pty Ltd, the company he was working for at the time of the hearing.
In mid-2006 the wife trained as a consultant and became self‑employed.
In 2007 the husband underwent surgery for his back and stayed with the wife and children in their rental accommodation for 10 months.
From 2006 or 2007 to 2012, the husband paid the wife AUD$3,450 per month in addition to paying for the children’s extra-curricular activities, private health insurance and purchasing a car for the wife.
In 2006 the parties shared a rented property for a period of 10 months at a rented premises in Suburb BB. The husband deposed that he paid for the moving expenses of the wife and the children which totalled AUD$10,000. The husband asserts that during that time he and the wife lived separately under the one roof. It is unclear whether this is the same period as is referred to in paragraph 61 above. It does not impact upon the outcome of the case in any appreciable manner.
On 28 April 2009 the husband purchased a property at B Street, Suburb C for AUD$910,000 (“[the Suburb C] property”). The circumstances of this purchase is an issue in the proceedings. The husband claims that the wife approached him and asked for assistance in purchasing a property as she was not able to obtain a loan. The wife paid approximately AUD$85,000 towards the purchase price. The husband deposed that he contributed a further AUD$18,904 which was disputed by the wife.
The property was rented to the wife for AUD$3,259 per month.
The husband asserted that he continued to pay the wife a sum of AUD$3,450 per month following the purchase of the property. The husband’s income was paid into the offset account for the mortgage over [the Suburb C] property to which both parties had access.
In November 2011 the husband had major back surgery. Following his surgery he resided for some time in [the Suburb C] property. The wife travelled to India during this time and asserts that the husband drew down some AUD$40,000 from the mortgage offset account.
On 28 August 2012, the husband and wife executed a document entitled “Agreement to Repay Debt” (“the first agreement”). The document provided for the husband to pay the wife AUD$10,000 per month. It is the husband’s case that he felt coerced to sign the document and did not obtain any legal advice. The payment of AUD$10,000 per month was paid into a Commonwealth Bank account from which the mortgage payments for [the Suburb C] property are drawn (and to which the wife had access).
The husband commenced paying the wife the sum of AUD$10,000 per month in accordance with the first agreement. Those payments ceased in approximately August or September 2015.
The husband deposed that the payment of rent for the property, since 2012, has been erratic.
On 23 December 2013 the husband and both children executed a further document titled “Family Agreement” (“the second agreement”). The treatment of this agreement is an issue in the proceedings, as is the wife’s assertion that she holds a beneficial interest in [the Suburb C] property. It is the husband’s case that he was coerced to sign this document and neither he nor the children obtained legal advice prior to signing it.
In December 2013 the husband moved to Asia for an employment opportunity. At the time of the trial he was still working and residing in Asia.
In May 2014 the husband signed a Will sent to him by the wife which named the wife as the sole beneficiary to his estate.
In 2015 the husband was married in Asia to Ms CC.
At some time about mid 2015 the wife had a Financial Agreement drawn up by a solicitor and sent to the husband. Clearly this was intended to be a financial agreement which would be covered by the provisions of s.90G of the Family Law Act and become a document which would oust the jurisdiction of the court if the Act was properly complied with.
On 15 July 2015 the wife lodged a caveat over [the Suburb C] property.
On 1 September 2015 the husband commenced these proceedings.
On 15 September 2015 the husband stopped making the monthly payments of AUD$10,000 to the wife. The wife withdrew some AUD$10,000 from his Commonwealth Bank account without his consent, although this was later paid back. The husband continued making interest payments on the mortgage.
On 27 April 2016 the matter came before a judge of the Family Court and orders were made for the husband to pay the wife the sum of AUD$1,800 per month by way of spousal maintenance. At the time of the trial he had discontinued making the payments. It was the non-payment of the interim spouse maintenance and the mortgage, by the husband, which prompted me to set the matter for trial. The court ordered on 27 April 2016:
That the Husband be restrained by injunction from:-
a)Offering the property at B Street, Suburb C, N.S.W. as further security to increase his borrowings against that or any other real estate;
b)Operating the Viridian Line of Credit account no. …71 other than to:-
i)Meet all payments of home building insurance premiums;
ii)Make discretionary lump sum and/or capital payments in reduction of the said facility;
iii)Make discretionary withdrawals of capital and/or periodic amounts from the Viridian Line of Credit account provided that the balance of the facility does not exceed the sum of $880,000.
The mortgage payments on [the Suburb C] property fell into arrears. On 10 May 2018 the Commonwealth Bank of Australia filed a Statement of Claim in the Supreme Court of NSW seeking an order for possession of [the Suburb C] property.

Issues

The issues of fact in this case are multitudinous. Partly that arises from the long period of time between the dates of relevant financial history in the 1990’s and the date of commencement of the proceeding.
I have identified the issues of fact as best I can later in these reasons where I have made findings on the following. Some of the findings are set out under headings which may differ slightly from those set out below, however, all were addressed:
·    Was the Business Q business purchased with 100 per cent finance as asserted by the husband or with a deposit of $50,000 and borrowings from a bank of $150,000 as asserted by the wife?
·    What were the circumstances of the purchase of the Suburb T property?
·    What were the circumstances of the purchase of the Suburb V property?
·    What were the circumstances of the building of the two residences on the Suburb V land?
·    What are the details of the sale of the smaller residence?
·    What funds did the husband receive from cashing the parties’ superannuation in 1995?
·    What funds did the husband transfer to India in 1995?
·    What were the circumstances of the sale of the Business U?
·    Did the parties have $140,000 in savings at the date the wife left Australia in 1995?
·    What funds did the husband realise from the liquidation of the Australian assets in 1995?
·    Did the wife agree to the liquidation of the Australian assets?
·    Is there any evidence the husband secreted and of the funds received from the sale of the Australian assets?
·    What is the effect of the “Agreement to Repay Debt” in this hearing?
·    What is the legal effect of the Family Agreement”?
In determining the issues in this case, as identified above, there is an underlying question which ultimately needs to be determined, namely, is it reasonable to conclude that between 1989, when the parties commenced to operate the Business Q business (perhaps fully financed) and February 1995 when the wife travelled to India, the parties were able to create AUD$900,000 worth of net wealth, all from a capital contribution of AUD$40,000 of funds, as asserted by the wife? Is a figure of AUD$236,720, which the husband says he received from the liquidation of the Australian assets in 1995 a reasonable conclusion?

There are further issues about the contributions which each party made, matters arising under s 75(2), whether the husband has been financially unable to comply with the court order requiring him to make an interim spouse maintenance payment and also to maintain the balance of the mortgage on the B Street property below a specified level.

The hearing

At the commencement of the hearing the husband sought to and did rely, on his affidavit sworn 23 April 2018, an affidavit of his uncle Mr DD sworn 18 April 2018 and a Financial Statement filed 23 April 2018.
The wife sought to rely on her affidavit filed 1 May 2018, an affidavit of the parties’ adult child Mr D Bhatt filed 26 April 2018 and her Financial Statement filed 1 May 2018. During the hearing, the wife withdrew the affidavit of Mr D Bhatt and did not rely on it.

Husband’s Final Orders sought

The husband sought final orders in the following terms:
1. That, subject to his entitlement to do so having regard to the proceedings for possession of land commenced by the Commonwealth Bank of Australia in the Supreme Court of NSW, as soon as reasonable practicable the husband do all acts and things necessary and sign all documents required to list for sale and thereafter to sell the property situated at and known as [B Street, Suburb C] in the State of New South Wales (The [Suburb C] Property) for sale by Auction with the real estate agent of his choice upon the following terms:
a. The Auction shall take place within 6 weeks of the instruction of the husband to the agent, or on such other date as the husband on the recommendation of the agent determines.
b. The reserve price shall be as agreed between the parties and failing agreement it shall be the reserve price determined by the agent.
c. In the event that [[the Suburb C]] property is passed in the Husband shall negotiate with the highest bidder and shall accept any offer to purchase [[the Suburb C]] Property at no less than 90 per cent of the reserve price.
d. That in the event [[the Suburb C]] Property does not sell at Auction or does not sell by private treaty within two (2) weeks after the date of the Auction then the husband shall relist [[the Suburb C]] property for sale by Auction at intervals of no more than six (6) weeks on the same terms and conditions as set out herein until the [Suburb C] Property is sold.
4. That, subject to any orders made in the proceedings for possession of land commenced by the Commonwealth Bank of Australia in the Supreme Court of NSW, upon [the Suburb C] Property being sold the husband shall distribute the proceeds of sale as follows:
a. In payment of real estate agent’s commission and expenses on the sale and listings for sale;
b. In payment of proper legal costs and disbursements incidental to the sale;
c. In an adjustment of statutory rates, levies and taxes on [the Suburb C] Property;
d. In payment to the husband of an amount sufficient to pay the amount of Capital Gains Tax (“CGT”) payable by the husband as a consequence of the sale and in the event that a determination of the CGT so payable has not been made by the date of completion of the sale a letter from an Australian accountant engaged by the husband as to that accountant’s estimate of the CGT payable by the husband as a consequence of the sale shall be sufficient determination of the amount payable to the husband.
e.In payment 20 per cent of the balance then remaining to the wife less the amount of all unpaid costs orders made against the wife in favour of the husband in the Federal Circuit Court of Australia, the Family Court of Australia and the Full Court of the Family Court of Australia.
f.         In payment of the balance to the husband.
5. That by 5.00pm on the 28th day following the date of these Orders the wife shall provide vacant possession of [the Suburb C] property and shall thereafter remain away from [the Suburb C] property unless with the written consent of the husband.
6. That in accordance with order 6 following the period of 28 days the husband shall be entitled to exclusive occupation of [the Suburb C] property.
7. Pending the sale of [the Suburb C] property the husband shall be responsible for the following payment of money in relation to [the Suburb C] Property:
a.50 per cent payment of all statutory rates and home building insurance.
8. Pending the sale of [the Suburb C] Property, the wife shall be responsible for the following payments of money in relation to [the Suburb C] Property:
a. 50 per cent of all statutory rates and home building insurance;
b. 100 per cent of home contents insurance, general maintenance, costs and upkeep including but not limited to painting, gutter cleaning, repairs and replacement costs of any building expense in relation to [the Suburb C] Property.
9. The wife shall indemnify the husband and hold the husband forever indemnified with respect to all required payment of outgoings as defined in Order 8.
10.      That unless otherwise specified in these orders:
(i)Each party is solely entitled to the exclusion of the other to all property and financial resources which are in the name or possession of such party, whether vested or in reversion, as at the date of these orders.
(ii) The husband is solely entitled to the exclusion of the wife to any superannuation benefits standing in his name and the wife shall have no right to make any claim on any superannuation benefits belonging to the husband or to which the husband is, or may in the future become, entitled.
(iii) Each party is solely entitled to the exclusion of the other to the benefit of all insurance policies for which such party is the policy holder.
(iv) Each party is solely liable to the exclusion of the other for any liability encumbering any items of property to which that party is entitled pursuant to this Order.
(v) Each party is solely liable to the exclusion of the other for any liability standing in such party’s name.
12. The parties shall do all acts and things and give all consents and execute all documents in writing to give effect to these orders in the time prescribed.
13. In the event that either party refuses or neglects to execute any deed, document or instrument to give effect to these Orders, the Registrar of the Family Court of Australia be appointed pursuant to section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the said name of the party and to do all acts and things necessary to give validity to such deed documents or instrument upon The Registrar being provided with verification of such refusal or failure by way of affidavit.
14.      That the wife’s application for spouse maintenance be dismissed.
15. That in the event the wife fails to comply with Order 5 and 6 herein that in accordance with Rule 20.54 a warrant for possession be issued in the following form, but not before 5.00pm on the 35th day following the date of these orders
a. To the marshal of the court, to all officers of the Federal Police and to all officers of the police force of the State of New South Wales
b. Whereby by an order of this court made at Sydney on [date of order] it was ordered by the court that [Ms Acharya] should, on or before 5.00pm on the 28th day from the date of orders vacate the home, being the property situate at and known as [B Street, Suburb C], in the state of NSW, and whereas the court is satisfied that the said [Ms Acharya] has failed to comply with such order, you are hereby directed for the purpose of giving effect to the said order at such time with such assistance as you may require, and if necessary by force, to enter the land described being [B Street, Suburb C] in the state of New South Wales and cause the applicant [Mr Bhatt] to have vacant possession of it, and to cause the respondent [Ms Acharya] and any other third person residing there, to vacate the said land.
16. That the Respondent [Ms Acharya] pay the costs of any application required or any costs associated with the issuing and carrying our [sic] of any warrant for possession in accordance with order 15 herein on an indemnity basis.
17. That the wife be restrained from commencing any further proceedings against the husband in any other jurisdiction other than the Commonwealth of Australia relating to the property of the parties to the marriage.
18. That the wife be restrained by injunction from showing, copying, using, sending any documents or copies thereof whether pleadings or financial disclosure to any person, entity, corporation, business other than the current parties to the current proceedings and her legal representatives to those proceedings.
19. That The wife be required to seek leave of The Court before issuing any further application associated with or following from the current proceedings.
20.      That the wife pay the costs of the husband of and incidental to:
a. The Order by The Court of Appeal dated 22.3.17 in the sum of $24,047.22;
b. The appearance before Her Honour Judge Boyle on 24 November 2017, the costs of which were reserved and;
c. The proceedings in the Supreme Court of NSW which were transferred to this Court by order made … 2017; and
d.        These proceedings [sic]
e. And all such costs be adjusted against any money to be received by, or added to any money to be paid by the wife pursuant to any final orders made by this court.

Wife’s Final Orders Sought

The wife sought the following orders:
1.        Declaratory Orders
(a) A Declaration to the effect that the husband holds the property located at [B Street, Suburb C] (“the home”), being all that land contained in … subject to the mortgage secured by the CBA.
(b) That the following two agreements are binding upon the husband:
(i) Agreement to repay debt agreement dated 28 August 2012
(ii)      Family agreement dated 23 December 2013
2.        Superannuation Orders
That in accordance with Section 90MT(1)(a) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of Section 90ME of the Act becomes payable to or on behalf of the husband from his interest in the [L] Signature Super Plan and [L] Superannuation Savings Trust, the wife is entitled to be paid by [L Super] the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, being the entire balance as at 15 May 2018 together with any accumulation from that date until the payment and there be a corresponding reduction in the entitlement that the husband would have had but for these Orders.
(a) The operative time for order is four business days after the service of the Orders on the Trustee.
(b) The parties note that this Order and payments made as a result will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.
(c) The payment that the wife is to receive, pursuant to order 2(a), is to be paid into an Eligible Rollover Fund with EE Superannuation.
3. That until such time as the superannuation split to the Wife pursuant to these Orders can be rolled over onto a separate account of the Wife, the Husband and the trustee are restrained from taking any step to de-value the Wife’s interest in the fund.
4. That in the event that the court makes an order that the husband is to transfer part of his superannuation entitlement to the wife, the wife shall, within 14 days of any such order, set up an Eligible Rollover Fund membership with EE Super.
5.        Transferring of the home to the wife
(a) The husband shall do all things in order to transfer his interest in the home, including providing any discharge authority as follows:
(i) within 60 days of either receiving any splittable amount in an Eligible Rollover Fund; or
(ii) if the Orders do not provide for the wife to receive a splittable amount from the husband’s super within 90 days of receiving the final orders in this matter, the husband shall do all things in order to cause the home to be transferred into the wife’s name and/or jointly in hers and [Mr D Bhatt’s] names.
(iii) if the wife gives notice to the husband within 21 days of receiving the final court orders, that she wishes to sell the home, that the husband grant to the wife a Power of Attorney authorising the wife to sell the home on his behalf, with the wife to take all reasonable steps to have the home sold within 120 days of the date of the final orders.
6.        Payment of spousal maintenance and loan repayments
(a) That the husband shall pay directly to the wife within 14 days of these orders the sum to be determined during the proceedings (which represents the non-compliance with the order made by Loughnan J on 27 April 2016, that he was to pay $1,800.00 per month towards the viridian line of credit and the $15,500 that the wife paid into the viridian loan).
(b) Up until the home is either transferred to the wife and [Mr D] or it is sold pursuant to order 5 that the husband shall:
(i) Continue to pay to the wife by wait of spousal maintenance, $1,800.00 per month
(ii) Pay the $1,800.00 per month towards the viridian loan interest
(iii)Pay the home insurance with Commonwealth Insurance
(c) After the home is transferred into the wife’s name, the husband shall pay spousal maintenance to the wife in the sum of $1,800.00 per month for a period of 2 years to be made on the 15th day of each month.
7.        Costs
The husband pays the wife’s costs of these proceedings as from 23 March 2018.

Referral of the matter to the Australian Tax Office

During the hearing, due to the evidence I had heard in relation to the contested ownership of the Suburb C property, I asked the parties to address the Court as to why I should not refer this matter to the Commissioner of Taxation to investigate and consider whether the Commissioner might wish to be added as a party to these proceedings. Brief submissions were made by counsel for the husband. The wife had no objection to the matter being referred. The reason for the referral was simple. The wife was alleging that the parties had entered into a sham arrangement designed to portray that the husband was the owner of the property so that he could claim income deductions and thereby reduce the amount of taxation he would otherwise be required to pay. It was apparent at that time that the property was the only available asset which the Commissioner of Taxation might have available to meet payments of taxation which should have been paid together with any interest or penalty which might otherwise be payable. As can be seen hereafter, I have been satisfied the husband has not misrepresented any relevant circumstance to the Commissioner in his Income Tax Returns, at least in relation to any of his Income Tax returns which became evidence in the case. I do not consider it probable that any other relevant tax return of the husband has misrepresented a relevant fact.
The Full Court has determined cases where it has held that the Court has an obligation to notify third parties of proceedings where the third party is entitled to intervene in the proceedings by virtue of s 79(10), namely, a creditor of a party to the proceedings, or a person whose interests would be affected by the making of the order (See Biltoft & Biltoft (1995) FLC 92-614).
In In the Marriage of P (1985) 9 Fam LR 1100, Lindenmayer J considered the question of whether he should refer the papers to the Commissioner of Taxation. His Honour concluded:
… I am of the opinion that this court, as a Federal court exercising the judicial power of the Commonwealth, has a duty to protect the revenue of the Crown in right of the Commonwealth. That duty extends to requiring this court to take such steps as it is able to take to ensure that the revenue laws of the Commonwealth are not defrauded or evaded by litigants or others who come before it.
Where, as in this case, the evasion is by a party and has already occurred, the steps which the court might take in fulfilment of its duty are limited. …
In practical terms, the only course available to the court is, when giving judgment, to order or direct the referral of the papers in the case to the Attorney-General, and that is the course which I propose to take in this case.
The Full Court in Malpass & Mayson (2000) FLC 93‑061 considered Lindenmayer J’s judgment in In the Marriage of P as well as other cases where the question of referral to the Commissioner of Taxation was considered. Their Honours stated:
[31]Despite these authorities we do not think that it necessarily follows that the Court is always under a duty to report the fact of commission of possible offences to relevant authorities including revenue authorities, although it clearly has the power to do so. Questions of degree must be relevant. There are many cases where minor irregularities are revealed in relation to taxation, social security and other issues. We think it unreasonable for the Court to burden itself with a duty to report all of these matters. Different considerations may apply in relation to more blatant and substantial irregularities. We leave the determination of this issue to be determined in a case where the point arises directly. It does not arise here for there is no dispute as to the Court's power to make such a reference, as his Honour did.
In this case, I consider that if the wife is found to be the beneficial owner of [the Suburb C] property, the husband may have a substantial taxation liability arising from claimed deductions to the property between 2009 to present. I therefore consider that the Commissioner is a person whose interests would be affected by the making of an order. For those I exercised my discretion and made orders on 17 May 2018 in the following terms:
THE COURT NOTES
1.In the determination of this property proceeding the only asset of significant value, in relation to which the Court could make an adjustment of property, is a property registered in the husband’s name and located at [B Street, Suburb C].
2.In relation to that property:
(a) The wife seeks:
i.   A declaration that it is in fact her property (held in trust for her) and has been since its purchase.
ii.   It be transferred to her;
(b)The husband refutes that allegation and his case is that:
i.      the property has always been his property;
ii.      It was acquired as an investment property;
iii.The husband leased the property to the wife;
iv.The husband has, since the purchase of the property in 2009, returned his Income Tax Returns claiming deduction arising from his investment in that property.
3.Should the court find, as sought by the wife, that the property has at all times been hers, it may be that the Commissioner of Taxation would take the view the husband should not have claimed against his income the expenses of the property at [B Street, Suburb C], which he did.
DIRECTION
4.I direct the Registrar of the Court to send copy of the order and notation made herein to the Commissioner of Taxation and invite her to consider whether intervention in the proceedings is sought, and to note that the matter is adjourned to 18 and 19 June 2018 for final determination. Any application to intervene can be returned on short notice by arrangement with the Associate to Justice Le Poer Trench at: ....
I note that as at the date of this judgment no application to intervene in the proceeding has been received from the Commissioner of Taxation.

Credit

The husband

The husband is the applicant in this matter and gave his oral evidence as the first witness in the case. Given that credit is a very significant issue in this case, I closely observed the manner in which he gave his oral evidence and listened in detail to the content of same.
The husband presented as a relaxed, articulate gentleman of Indian heritage. He answered questions asked of him readily and with conviction. He was unruffled by questions from the wife’s solicitor. He readily conceded errors in his evidence where he identified same, although there were few.
The content of his evidence did not suggest internal conflict nor lack of credibility.
There was nothing about the manner in which he gave his evidence which suggested he was not being truthful or as accurate as he could reasonably be.
There were multiple credit issues in the case. Much of the evidence was hard to test because the allegations made by the wife against the husband related to incidents which occurred prior to the end of 1995 and records were very difficult or impossible to obtain. Part of the husband’s evidence about the circumstances in which he entered into an agreement titled “Agreement to Repay Debt” in 2012 and a “Family Agreement” in December 2013 was that the wife had threatened him in relation to the children. All the threats were said to be made verbally and all were denied at the hearing by the wife. There was, however, one document which corroborated part of the husband’s allegations of threats from the wife about the children. That document was annexure “X” to the husband’s affidavit and was a copy of an email the wife had sent to the husband on 29 July 2015. I have set out the full text of the email in these reasons, however, the words “I will not be able to support the kids or offer them a home” support the husband’s claim that the wife used the children as a threat to him.
As will be seen later in these reasons the husband’s evidence about the amount received by him from the sale of the Australian assets in 1995 has been accepted by me as the more reliable account of what occurred at that time.
The husband in his affidavit was able to annexure a considerable number of documents to support his assertions of fact. The affidavit of the husband was credible in its reading.
By and large I found the husband to be a credible witness and on many areas of dispute with the wife, the more reliable witness.

The wife

The wife gave her oral evidence on the third and fourth day of the trial. She presented as an articulate lady of Indian heritage. She answered questions asked of her readily. She appeared to listen carefully to the questions asked and mostly answered the questions asked without seeking to add additional information. She exhibited tension in her mannerism and presentation in the witness box and in the court when she addressed the court. Initially I considered this may have been nervousness. I observed her closely as she gave her oral evidence in the witness box. However, on 18 June 2018 when the hearing resumed part heard and she represented herself, I formed the view that she presented as a tense person as part of her personal make up. She was vigorous in her presentation of her case and was slow to accept rejection of arguments she put. She had a pressure of speech. By that description I mean she appeared, on occasions, to be rushing to deliver her words in a manner which is sometimes used to support emphasis or correctness of the point being made. The tension exuded by the wife in court was palpable.
The husband’s presentation was almost the converse of that of the Wife in that he was a quietly spoken relaxed person who did not exhibit the pressure of speech seen in the wife. I can well understand from having had the opportunity to see them both, how the husband may have regarded himself as dominated by the wife in their interactions.
The wife presented her submissions by telephone. I did not see her presentation yet I could hear in the manner she presented same the tension in her voice.
The content of her evidence was troubling in that in her cross-examination, the husband’s counsel highlighted different versions of fact which the wife had given the court in affidavits sworn and filed by her and in her oral evidence on a particular fact in issue. This comparison was made on a number of occasions and on some of those occasions her answer was, to the effect that, what she had said in her earlier affidavit was untrue.
A final consideration of the question of credit for the wife is the case she ran in relation to the purchase of the Suburb C property standing in the name of the husband. It is the wife’s case that she entered into a sham agreement with the husband (oral agreement) the terms of which were, in part, that the husband would be the legal owner of the property because the wife could not borrow money due to her credit record; that the husband would hold the property in trust for the wife; that the wife would pay the mortgage payments on the property under the guise of “rent”; that at a later time when the mortgage was repaid the husband was to transfer the property to the wife; that the husband would claim a tax deduction for all deductable expenses associated with the purchase and financial maintenance of the property which are permitted under Australian tax law. The husband denies all of that said agreement or arrangement.
Whilst being satisfied that the husband did not enter into any such scheme, the fact that the wife said for her part she did, discloses a clear preparedness to live a lie for the benefit of herself and to the detriment of the Australian Government. Such action undermines any credibility she might otherwise have.

Mr DD

This witness is the husband’s uncle. He gave his evidence by telephone from India. There was nothing about the manner in which he gave his evidence or the content of same which caused me to doubt his credit.

The Affidavit Evidence

The Husband

I have not specifically set out the affidavit evidence of the husband under a separate heading. I have set out his evidence throughout these reasons as I have addressed issues which have been raised by the wife.
I have set out the wife’s evidence in chief because it sets out what it is she seeks to establish. Much of her case is contested by the husband and as I address her case in the determination of the identified and relevant issues of fact I have provided his version of fact.
The parties agreed that their contributions made to the date of separation should be assessed as equal. Such a concession would normally mean it is not necessary to canvas in any detail each parties’ contribution to that date. However, in this case, there is an issue about how much money was received by the husband from the sale of the Australian assets in 1995 when the parties moved to India. As a consequence it has been necessary to try and piece together from the best available evidence what that sum might reasonably have been.

The Wife

The wife filed her trial affidavit on 1 May 2018, which set out the following.
The parties commenced a relationship in 1984, and were married in 1988 in India, at which point they also commenced cohabitation. The parties went through a civil ceremony in Australia in 1989. There are two adult children of the relationship, Mr D and Ms E. The parties separated on 26 November 1998, and were divorced on 7 November 2001.
At the commencement of cohabitation, the wife says that she had approximately AUD$7000 of savings, jewellery which she says was valued at AUD$50,000, and household items. She says that the husband had no assets of substance. She further deposes that she funded the husband’s attendance at a 12 month hotel management course, paying AUD$7000 for the course and further monies for the husband’s living expenses.
The parties lived in City O at the commencement of cohabitation. Both of the parties were employed during that time.
The parties moved to Australia in 1989.
The wife deposes that the parties purchased a franchise, Business Q, in 1990. The wife says that the cost of the business was AUD$200,000, financed by a AUD$40,000 deposit from the wife’s savings, a AUD$10,000 loan from the wife’s brother, and the balance from a business loan from the National Australia Bank (“NAB”)
Each of the parties worked in the business. Each party drew a salary of approximately AUD$50,000 per annum (the husband said he drew about AUD$60,000 to AUD$70,000 per annum and that the wife also drew a wage, however, he did not say that was the same as his drawing). The wife says that the business maintained an annual turnover of AUD$800,000 for each of the five years the parties owned it. (I Note that the husband annexed to his affidavit as annexure “D” copies of the Annual Return reports for S Pty Ltd. for the 1991 to 1994 years and that shows the “operating profit/(loss) after income tax”; for the 1991 year was ($750), for the 1992 year was $16,052; for the 1993 year was $7,332; and for the 1994 year was $4,462. Any suggestion that there were other funds available for distribution which could have substantially provided funds for the parties was not supported by the records provided to the Australian Government instrument.) If the turnover of the business was AUD$800,000 per annum the expenses were such as to provide only the amount of profitability evidenced in the company annual returns together with the salary the company paid each of the shareholders, in this case the husband and the wife.
The franchise agreement was terminated in 1992, and thereafter the continued trading as Business U. The wife says that she negotiated the exit agreement after the relationship between the husband and the franchisor became strained. The detail of the exit agreement was not available.
The parties agreed to put the business on the market for AUD$250,000 in late 1994. The husband has not traversed that fact, however, he has been unable to recall the detail of the sale of the business in 1995.
In 1991, the parties jointly purchased a townhouse in Suburb T. The purchase price was AUD$182,500, which the wife deposed was funded by a 20 per cent deposit of about AUD$36,500 from the parties’ joint funds and a mortgage of AUD$146,000 to NAB. The wife gave no evidence about the funding of the costs of purchase. The husband says the property was financed with 95 per cent borrowing.
The wife deposed that in 1993, she inspected the subdivision at Suburb V. She further deposed that she decided to purchase a block and subdivide it. The parties bought a block of land for AUD$270,000 funded by a 10 per cent deposit from the parties’ joint funds and a mortgage. The wife says that she chose the builder to construct two houses, a four bedroom house and a three bedroom house, on the land, and she obtained estimates for the construction costs. The total cost of the houses and land were estimated at AUD$539,000.
The wife says that she negotiated the sale of the three bedroom home for AUD$350,000.
It was deposed that the wife placed the Suburb T house on the market, with the husband’s agreement. The house was sold in about May 1994 for AUD$215,000. The funds were applied to the Suburb V property, and the balance of that purchase was covered by a mortgage. The wife does not say what was outstanding on the mortgage on the Suburb T property at the time of sale. There is an inference from her evidence that she was saying the mortgage was all but paid off. The husband does not agree that was the case.
During the period that the parties operated the franchise, the wife says that superannuation contributions were made for each party.
In early 1995, the wife returned to India in order to give birth to the parties’ second child. She deposed that she signed documents in relation to the running of the business and two houses before she left. She says that the husband wanted her to appoint him her power of attorney for the purpose of the sale of the business. She says that the parties received legal advice against the idea, but that she appointed him after “a lot of” pressure from the husband. The wife signed the documents on 1 February 1995.
It is the wife’s evidence that the husband travelled between Australia and India in 1995. The house in Suburb V was rented out. In about July of that year, the wife says she asked the husband to give notice to the tenants. In August, the wife says the husband told her that he sold the house for AUD$430,000. She said that he said he had decided to start a business in City N. She said further that she never saw any documents in relation to the sale of the house or the business, and that the monies were placed in an account in the husband’s name. The wife did not see the documents for that account.
The wife deposes that the husband told her he had withdrawn the parties’ superannuation from their fund.
The wife set out the following table which she says is her estimate of the value of the funds received by the husband when the assets in Australia were liquidated.

Description of Asset

Net Value

Minimum proceeds from sale of Suburb T townhouse

$63,500

Smaller Suburb V Home

$348,500

Larger Suburb V Family Home

$420,100

Business U (estimated sale price)

$200,000

Superannuation (estimated liquidation amount)

$100,000

Savings (estimated)

$140,000

Sub-Total

$1,272,100

Less maximum of the mortgage amount

$342,000

Total net value of liquidated assets

$930,100

In October 1995, the wife says the husband bought a 3 bedroom apartment in City N in his name. The purchase price was approximately AUD$200,000 which was paid for from savings. The parties resided there for three years. The wife says that the husband told her the apartment had been sold after the parties returned to Australia. There is an issue about the purchase price of the Indian accommodation. The husband says the property was purchased for AUD$85,000 and he also spent AUD$20,000 on the purchase of motor vehicles, AUD$100,000 on the establishment of businesses, AUD$20,000 on household goods. He said there were other expenses associated with the move to India from Australia.
The parties resided in India for three years. The wife says she did not work, and the husband was involved in a number of businesses. The wife undertook some work for these businesses, but was not paid. One of the businesses is still in operation. The wife sought to suggest the business was still the husband’s or that he had some interest in it for which he was receiving “royalty” payments. The husband denied that and called his uncle as a witness. The uncle identified he was the owner of the business the wife was asserting belonged to the husband. That witness was a credible witness.
The wife set out her homemaking duties. The wife set out that she undertook the majority of the homemaking duties throughout the marriage. She also deposed that she was the primary carer for the children throughout the marriage. The children resided with the wife during and after the relationship, except for some months (probably from March to September) in 2001, when they were in the husband’s care in AA Town.
The wife worked part-time while the children were in her care. She deposed that she was declared bankrupt in January 2002, due to the husband’s lack of child support payments (I note the children were living with him in 2001 the only period of time I am satisfied the husband did not pay child support to the wife) and his not paying school fees for the children. Again there is an issue about whether the husband did pay the children’s school fees during the time they lived with him in 2001.
The wife says that from early 2002 until 2007, the husband paid her AUD$3000 per month in child support payments. From 2007-2012, he paid the wife AUD$3450 per month. In 2006, the husband lived in the wife’s home for about 10 months and paid the wife AUD$800 per week in rent.
The wife says that she managed to save about AUD$85,000 by early 2009.
In relation to the purchase of the B Street house, the wife says the following:
a)The wife had doubts about her ability to obtain a loan from the bank by herself.
b)The husband had promised to contribute AUD$50,000 to the purchase of a property.
c)The husband provided the wife with financial documents for the purpose of making home loan applications.
d)In February 2009, the parties jointly applied to the Commonwealth Bank. The wife deposed that the husband told her “This is your project. I am happy to sign the forms where you tell me.”
e)The wife inspected homes in Suburb C, and negotiated the purchase of the home for AUD$910,000.
f)The wife learned that it would be easier to obtain finance if the application was made solely in the husband’s name.
g)The husband obtained a loan from the Commonwealth Bank for AUD$856,440.
h)The contracts for the purchase of the house were exchanged on 13 March 2009. The wife said she instructed the solicitors to remove her name from the contract.
i)The wife says she contributed AUD$68,250 as a deposit on the property.
j)The loan with the Commonwealth bank was revised on 20 March 2009 to a Viridian Line of Credit for AUD$879,194.
k)The parties made arrangements for the payment of the loan. The wife says that the husband told her that he would have his salary paid into the loan account to reduce the loan, and that the husband agreed to pay AUD$3450 to the wife by way of child support.
l)The completion of the purchase took place on 27 April 2009.
m)The wife said that she and the husband had discussions about the home, in which the husband said that the house was hers.
The wife said from May 2009, the husband paid her AUD$3450 per month in child support.
The wife had authority to access the Viridian Line of credit.
The wife says she paid all the expenses in relation to the house. The husband denies that.
The husband lived in the house in 2011 while the wife was overseas. He also lived in the house from November 2011 to September 2012. The husband says that during that period he met all the mortgage payments, outgoings on the property and continued to pay the child support.
In July 2012, the wife said she looked at the Viridian Line of Credit account and noticed that the husband had diverted significant portions of his income from the account to his personal account.
The wife looked at refinancing the home loan, but was not confident that she could refinance it if the property was in her name.
In August 2012, the parties signed a “debt agreement”, setting the principal debt amount at AUD$520,000. The wife received AUD$10,000 per month from August 2012 to September 2015 as payment under that agreement. The husband has a different version of the circumstances which caused him to enter that agreement.
In relation to the Family agreement, the wife says the following:
a)The wife became aware in 2012 that the husband wanted to apply for a position in Asia with J Pty Ltd. The husband took up the position in January 2014.
b)The wife looked into refinancing the home loan, but decided to wait until the parties had 20 per cent equity in the property.
c)The husband signed a power of attorney document in favour of the wife on 12 December 2013.
d)The wife says the husband said he would sign any further document she required. The parties signed the agreement on 23 December 2013.
e)The parties celebrated Christmas with the children on 25 December 2013, and the husband left for Asia on 4 January 2014. The wife says the parties parted in peace.
The husband has a different version of the circumstances in which the Family Agreement was entered into.
In relation to non-financial contributions, the wife set out the following:
a)The husband stayed at the wife’s house on several occasions. On some of those stays, the wife says she looked after him due to medical procedures he was undergoing. She says she provided cooking and cleaning during these periods.
b)The wife says she has helped the husband obtain employment, including collecting job advertisements and assisting him with job applications and interview practice. She says she assisted him with his application to J Pty Ltd.

The order I propose to make will provide for the problem identified by the above objection from the trustee.

Just and equitable

Having considered all the above matters I consider the orders I propose to make are just and equitable.

Spouse maintenance for two years

The wife sought an order for the payment of spouse maintenance for a period of two years.
The order sought is as follows:
Payment of spousal maintenance and loan repayments
(a) That the husband shall pay directly to the wife within 14 days of these orders the sum to be determined during the proceedings (which represents the non-compliance with the order made by Loughnan J on 27 April 2016, that he was to pay $1,800.00 per month towards the viridian line of credit and the $15,500 that the wife paid into the viridian loan).
(b) Up until the home is either transferred to the wife and [Mr D] or it is sold pursuant to order 5 that the husband shall:
(i) Continue to pay to the wife by wait of spousal maintenance, $1,800.00 per month
(ii) Pay the $1,800.00 per month towards the viridian loan interest
(iii)Pay the home insurance with Commonwealth Insurance
(c) After the home is transferred into the wife’s name, the husband shall pay spousal maintenance to the wife in the sum of $1,800.00 per month for a period of 2 years to be made on the 15th day of each month.
As can be seen, events have overtaken any possibility of a transfer of the property to the wife and the son as the wife presupposed would occur. No such order is possible nor would it have been appropriate.
The amount of the payments made by the husband under the order of 27 April 2016 have been taken into account as a contribution by the husband to the extent the payments were made.
The husband put his case in terms of the order of 27 April 2016 that he paid the order for as long as his income reasonably permitted. The hearing of his application to discharge the order from the date it stands paid together with the wife’s application for enforcement of arrears was subsumed in this final hearing.
Having considered the financial circumstances of the husband which applied during the period of time he did not pay the amount required to be paid either as interim spouse maintenance or to the outgoings on the property, I accept that it was not reasonable to require him to do so and had the application to discharge the order been able to have been heard I would have granted his application. Added to that circumstance the husband produced evidence to show that at times since the order for spouse maintenance was made, the wife obtained income from the renting of rooms in the house which would have, had the case been heard at those times, meant it was unlikely the court would have made a spouse maintenance order. The evidence established that at some time the wife received as much as AUD$1,000 per week from rental and at another time AUD$700 per week. In the hearing the wife asserted an income of AUD$300 per week from rental income. Further, the parties’ son was living in the house with the wife during the relevant period of alleged failure to pay the court order, and it is reasonable for him to have contributed to the household expenses at a reasonable level. He was in employment during the relevant period.
As the order of 27 April 2016 was an interim spouse maintenance order, that order expires on the making of the Court’s final orders. The court is now required to consider the wife’s application for ongoing spouse maintenance as a final order. That application must be considered afresh at this time.
Section 72 requires as follows:

FAMILY LAW ACT 1975 - SECT 72

Right of spouse to maintenance
(1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;

having regard to any relevant matter referred to in subsection 75(2).

The first aspect of the wife’s application for spouse maintenance to observe is that it was framed in circumstances where she envisaged she would have the property transferred to her name and have the continuing obligation to meet the mortgage. Given the size of the mortgage payment requires and the other outgoings on the property the wife was clearly of the view that she would not be able to meet all those payments until she had time to recover her income base. The wife’s available income base consisted of the following:
·Income received from renting rooms in the property.
·Income earned from work she could obtain through her MYOB expertise.
·Money provided by Mr D for board or contribution as a co-owner of the property (order 5(a)(ii) sought by the wife required the property to be transferred by the husband into the joint names of the wife and Mr D).
·Any other source of income the wife could generate through her own skills.
Turning now to consider the financial position each of the parties will have post the sale of the property, each will have about half the sale proceeds after meeting the mortgagee expenses, sale expenses, CGT and other associated expenses. The wife will also have one costs order to pay as provided for herein, namely AUD$24,047.22.
It is reasonable to anticipate the wife will have about half of the AUD$459,871 figure which I have calculated as the net funds available from the sale. That figure will be higher or lower depending upon the final sale price. So half the fund is AUD$229,935. From that amount will be deducted half of the CGT payment. The husband had sought an allowance of AUD$105,000. That figure was said to have been provided to the husband by his accountant. If that figure is used as a guide only (it not having been established by evidence), the wife would have AUD$177,435 available. She will also have to pay the sum of AUD$24,047.22. That will leave her with AUD$153,388 or thereabouts. The wife may or may not be required to pay other amounts for costs after determination of outstanding costs applications/reserved costs orders.
The wife was cross-examined about her income earning capacity including her intention to work in the future. That evidence and my general understanding of the wife’s ambition and drive and capabilities leaves me with little doubt she will seek out and obtain employment of some nature, whether as a self- employed person or as an employee as soon as the burden of running this litigation is concluded.
The wife will have to obtain premises to live in. Given her evidence in the proceeding it is reasonable to assume she will, at least in the short term share a residential accommodation (two bedroom unit would seem sufficient) with Mr D. It is further reasonable to assume that Mr D will contribute half the cost of the accommodation including rent and outgoings. The cost of reasonable accommodation for the wife and Mr D is not known.
In the changed circumstance of the wife’s accommodation it is unlikely that she would rent accommodation which would enable her to rent rooms. She will therefore have to obtain employment or create an income earning business to support herself. Her evidence in the hearing is that she will be seeking employment. There is no evidence of the wife having attempted to obtain employment in the period leading to the hearing.
There are relevant matters to consider under s 75(2) which would support the wife’s case for spouse maintenance. In particular, the age and state of health of the wife. In relation to her health there is some evidence which could support a conclusion she may be susceptible to stress and require the assistance of a psychologist from time to time. Further, in relation to her income earning capacity the evidence suggests the wife will seek to return to work. However, she has not worked in that area since 2016 and realistically has yet to really test how employable she is. Nonetheless there has been no evidence from the wife to show how she has tried to re-enter that employment (i.e. no evidence of job interviews or applications she has made in recent times). It needs to be remembered that the wife did not really have any incentive to seek employment as long as the husband was paying the order of 27 April 2016.
Clearly the wife will have an ongoing need to support herself. That need is not possible to quantify now as it is unknown.
The wife will have a splitting order in her favour, however, it is probably the case that the wife will not be able to access her entitlement until the husband does. Some superannuation funds will permit a spouse to access a splittable superannuation entitlement, however, that possibility has not been researched in this case and so that is an another unknown.
The wife is entitled to a reasonable standard of living. That is she is not required to live in accommodation which is at the bottom of the rental range or so distant from the availability of employment as to make it onerous or uneconomic to engage in available employment.
There are other considerations identified in s 75(2) which the wife could argue support a claim for spouse maintenance.
The wife is not required to use her capital to support herself, until it is exhausted, before she would be eligible for a spouse maintenance order under the Family Law Act. It may be reasonable that she use some of those funds when the husband’s financial circumstances are also considered as part of the evidence to be considered by the court.
Because the circumstance in which the wife sought her spouse maintenance order has changed so much from that she was seeking as a property order and as it will be necessary for the wife to change many of the details about her income and expenses once she has vacated the property, it is not possible to fairly determine the wife’s application for spouse maintenance.
I do accept that until the husband receives his proportion of the sale funds he will not reasonably be able to pay any spouse maintenance to the wife. When the amount which the husband claimed in his Financial Statement for payment of expenses on the property are removed he is still in a position of having either no available income to apply to the spouse maintenance of the wife or very little. That determination will be affected by the amount of taxation he is required to pay if he remains in Asia with his current employer or returns to Australia.
I propose in those circumstances to dismiss this spouse maintenance application by the wife.

Application for an order against the wife pursuant to section 102QB

The husband sought the following order pursuant to s 102QB of the Act.
That the wife be restrained from commencing any further proceedings against the husband in any other jurisdiction other than the Commonwealth of Australia relating to the property of the parties to the marriage.
Another order which really arises from a s 102QB order, if made, which is sought by the husband is:
That The wife be required to seek leave of The Court before issuing any further application associated with or following from the current proceedings.
Section 102QB is as follows:

FAMILY LAW ACT 1975 - SECT 102QB

Making vexatious proceedings orders
(1) This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:
(a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.

(2) The court may make any or all of the following orders:
(a) an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
(c) any other order the court considers appropriate in relation to the person.

Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
(3) The court may make a vexatious proceedings order on its own initiative or on the application of any of the following:
(a) the Attorney-General of the Commonwealth or of a State or Territory;
(b) the appropriate court official;
(c) a person against whom another person has instituted or conducted vexatious proceedings;
(d) a person who has a sufficient interest in the matter.

(4) The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(5) An order made under paragraph (2)(a) or (b) is a final order.
(6) For the purposes of subsection (1), the court may have regard to:
(a) proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b) orders made by any Australian court or tribunal; and
(c) the person's overall conduct in proceedings conducted in any Australian court or tribunal (including the person's compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

The husband says the evidence to support the making of this order against the wife is found in paragraphs 166 and 167 of his affidavit.
In those paragraphs the husband asserts that the wife has since September 2015 filed 20 applications. The husband has filed 6 applications during the same period.
The husband set out in paragraph 167 of his affidavit the conduct of the wife in the proceeding which he said frustrated his attempts to have the proceeding move to a final determination within a reasonable time and otherwise incurred cost to him which should not have been necessary. There are a number of the statements made by the husband in the sub-paragraphs of paragraph 167 which cannot be given weight.
The evidence in this case does not satisfy me the wife has “frequently instituted or conducted vexatious proceedings in Australian courts”. Accordingly I will not make the order sought by the husband.

Injunction against wife

The husband sought the following order against the wife:
That the wife be restrained by injunction from showing, copying, using, sending any documents or copies thereof whether pleadings or financial disclosure to any person, entity, corporation, business other than the current parties to the current proceedings and her legal representatives to those proceedings.
The husband submits the evidence establishes that the wife has published to the husband’s employer’s accountant information arising from this proceeding.
In paragraph 167(p) the husband annexed a copy of an email which the wife had sent to his company accountants. The wife referenced the husband’s Income Tax returns for the years 2014 to 2016. She informed the accountants “there is a blatant and false tax deduction taken with regard to [the Suburb C] property.” The email is dated 4 August 2017. The wife informed the accountants the husband had engaged in “a long history of deception, control and manipulation by [Mr Bhatt]”. She informed them there is an issue of family violence before the court.
It is difficult to reason what purpose the wife had in writing the email other than to do the husband personal harm to his reputation. The husband was entitled to be very embarrassed at the very least by the provision of the email to his employer’s accountant.
Section 121 is as follows:

FAMILY LAW ACT 1975 - SECT 121

Restriction on publication of court proceedings
(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;

commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.

The publication by the wife to the husband’s accountant of material she obtained from a document produced by the husband to the wife and/or the court in compliance with his obligation under the Act is, in my opinion, prima facie evidence of the publication of “part of a proceeding”. It matters not, in my view, that the documents were already known to the recipient (having been created by the accountants).
None the less, the publication of a document to a person who created the document might not, in itself, warrant an action against the wife.
The proceeding itself and the fact the husband seeks this order has put the wife on notice that the publication of court proceedings in relation to this court is an indictable offence punishable by imprisonment.
In the circumstances I will not make the order sought by the husband.

Costs applications

The husband seeks orders requiring the wife to meet the costs orders already made as well as a costs order for the Supreme Court proceeding which she commenced in 2016.

The Supreme Court of New South Wales proceeding

In 2016, on a date after this proceeding had commenced in this Court and the wife had consented to leave being granted to the husband to commence his proceeding for relief under s 79 of the Act, the wife commenced a proceeding in the Supreme Court of New South Wales which sought almost identical relief to that sought by her in this court. In 2016, a judge of that court, transferred the proceeding to this court, after a hearing about appropriate forum. The proceeding in the Supreme Court of NSW was numbered … and named the wife as plaintiff and the husband as defendant.
On 7 May 2018 when the matter was before the court, the wife informed the court, through her lawyer, that she would not be pressing any of the orders or declarations sought in that proceeding.
As a consequence of the above an order will be made dismissing the said Supreme Court of NSW proceeding.
The Family Law Rules provide for costs orders to be made in proceedings transferred from a State court. Rule 19.09 provides as follows.
FAMILY LAW RULES 2004 - RULE 19.09
Costs order for cases in other courts
(1) This rule applies to a case in the Family Court that:
   (a) has been transferred from another court; or
   (b) is on appeal from a decision of another court.
             (2) The Family Court may make an order for costs in relation to the case before the other court.

(3) The order may specify:
(a) the amount to be allowed for the whole or part of the costs; or

(b) that the whole or part of the costs is to be calculated in accordance with these Rules or the rules of the other court.

The proceeding was commenced in the Supreme Court of NSW and transferred to this court. No further document was filed in that proceeding in this court and no further application was made in that proceeding in this court. Until 7 May 2018 the proceeding merely “tagged along” with the substantive proceeding in this court. Those circumstances, prima facie, suggests that any costs order made, should be calculated applying the relevant provision of the Supreme Court of NSW Rules. When the circumstance of the wife abandoning that action in this court is added to the fact of the transfer of the proceeding, it becomes a compelling argument for any costs to be calculated under those said rules of the Supreme Court of NSW.

I will make a provision for each party to provide any submission they may wish to make as to costs of the Supreme Court of NSW proceeding.

I certify that the preceding six hundred and twenty-three (623) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 7 September 2018.

Associate:

Date: 7 September 2018

Appendix A

Sunday 17/6/2018 9.37 am
Dear Associate,

I am due to appear for the further 3 days of trial hearings on 18, 19 & 20 June 2018, before Justice Le Poer Trench.
I apologise for this late information that I am not able to attend court in person. Please could I be granted leave to attend by phone or videolink as is seen fit.
I am not fit and strong enough to attend in person. I have been trying to shore up my strength and fitness in the last few days to be able to attend in person, but this morning I realise that I am not going to be able to.

Since the last 3 days of hearings in May 2018, I have suffered several setbacks which have impacted my health greatly.
1. The husband has just not paid the spousal maintenance for May or for June. At this stage of the proceedings I have no opportunity to find other means.
The stress of one more time in my life being let down by the husband has added to the uncertainty of my circumstances.
2. The fact that there is a parallel possession of property claim before the Supreme Court of NSW has meant that I have had to attend to that factor as well. I have filed a Notice of Motion to be added as a defendant.
3. My son has faced a lot of personal difficulty in the 3 years of these proceedings in coming to terms with what he sees as betrayal and sabotage by his father. He has had great emotional turmoil and has had several personal breakdowns where he either goes into a dangerous depressive state or has sudden unbearable outbursts of anger. 2 weeks ago, he has had a similar crisis which I have had to help him with.
4. I have not been able to get any proper help from [Mr M] in preparing my final submission.
5. I have no personal help as I did when my daughter was here in May.

All of these factors have been overwhelming and exhausting for me. My own physical health and the mental strain has left me feeling weakened. In the last 2 weeks, I have sought some help from the doctor and psychologist. They do not have an instant remedy as they know it is stress-related. At this point the left side of my body from the neck to my hips is very stiff and painful. I am not confident to make the journey to the court with extensive files and paperwork. I do not feel confident that I will be able to sit in court for the duration as I need heat packs and need to yoga stretch to relieve the pain and stiffness in my back. I have not been sleeping well so feel physically exhausted.

I am explaining the details so that his Honour may not feel that I am being negligent in seeking this late permission.
I will await further directions in the morning. I have to submit my written submission and tender documents in evidence. I have all of them in scanned copy on my computer.

Sincerely

[Ms Acharya]

Monday 18/06/2018 8.05 am

Dear Associate,

I am awaiting to hear from His Honour about my request to attend the hearing by phone.
I have also attached my submission as directed on 17 May 2018.

Sincerely

[Ms Acharya]

Monday 18/06/2018 8.41 am

Good Morning,

Thank you for your email. Your position is different to that of [Mr Bhatt] as you are still being cross-examined and he is represented by a solicitor. You are required to be at court for the cross-examinantion unless the court grants an adjournment. If you wish to apply for an adjournment you may attend in person so that the hearing can continue if your application is unsuccessful OR you can make that application by telephone. You should be aware that if there is an adjournment you can anticipate an application by [Mr Bhatt] for an order that the property the subject of the proceeding be sold during the adjourned period. You should also be aware that the matter will have to be concluded in August.

Could you please advise as to what you propose to do?

Regards,
Associate to Justice Le Poer Trench
Family Court of Australia

Monday 18/06/2018 9.10 am

Dear Associate,

Thank you for your response.
I believe I am not being granted procedural fairness. The reasons are as below:
1. On 23 March 2018, the husband was granted leave to attend the entire trial hearings by phone or video-link. That means the court accepted that he would be cross-examined remotely.
2. Also, the court has not given consideration to the fact that the husband’s cross-examination was also not completed during the May hearings. His Honour terminated the process mid-way.
3. The court has been considerate to the husband’s health but my difficulties are not afforded the same consideration.

I do not want an adjournment. I request that His Honour allow me to complete my cross-examination by video-link or phone as he had accepted for the husband.
My non-attendance is not wilful. I am very exhausted and my health is in poor shape. I need to avoid high stress situations. I have been in hospital on 3 occasions during the course of these proceedings.

If His Honour is not willing to give me this consideration, I ask that I am allowed to appear for a 2-hour period in person and then I be allowed to return home and attend the remainder of the proceedings by phone. I just cannot cope with the discipline of remaining in court for the whole day.

The fact that I am not represented is not my fault. I am unable to afford it. [Mr Bhatt] has not paid me the spousal maintenance for May and June. As there are possession proceedings afoot in the Supreme Court initiated by the bank, I have had also had ask the paying guest to find alternate accommodation. That factor is important to consider in the administration of justice.

Please inform me His Honour’s decision. As I will have to take a taxi to the court as I am not fit to drive or take public transport. In that circumstance I will leave as soon as I hear from you.

Sincerely

[Ms Acharya]

Monday 18/06/2018 9.11 am

Dear Associate,
Please feel free to call me if that will be convenient to deal with this difficulty.
[Ms Acharya]

Monday 18/06/2018 9.21 am

Good Morning,

His Honour has said that you are required to attend in person for the purpose of completing any cross-examination left to complete, but that you may make your submissions by telephone.

Regards,
Associate to Justice Le Poer Trench
Family Court of Australia

[2018] FamCA 789

7 September 2018

Key Legal Topics

Areas of Law

Family Law

Tax Law

Commercial Law

Legal Concepts

Costs

Statutory Construction

Remedies

Procedural Fairness

Jurisdiction

Appeal

Description of Asset	Net Value
Minimum proceeds from sale of Suburb T townhouse	$63,500
Smaller Suburb V Home	$348,500
Larger Suburb V Family Home	$420,100
Business U (estimated sale price)	$200,000
Superannuation (estimated liquidation amount)	$100,000
Savings (estimated)	$140,000
Sub-Total	$1,272,100
Less maximum of the mortgage amount	$342,000
Total net value of liquidated assets	$930,100