Carpani and Arjuna (No 2)

[2018] FamCA 572

FAMILY COURT OF AUSTRALIA

CARPANI & ARJUNA (NO 2) [2018] FamCA 572

FAMILY LAW – PROPERTY – Undefended – Where the husband returned to India and did not take part in the proceedings – Where interim orders are made for the wife to receive the funds remaining in the husband’s Australian accounts and his superannuation.

APPLICANT: Ms Carpani

RESPONDENT: Mr Arjuna

FILE NUMBER: SYC 3055 of 2017

DATE DELIVERED: 31 July 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 26 July 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Clinch Long Woodbridge

THE RESPONDENT: No appearance

Orders

IT IS ORDERED, PENDING FURTHER ORDER:

(1)  That leave is given to the wife for her Initiating Application filed on 22 May 2017 to be heard as an undefended proceeding. 

(2) That, by way of interim property adjustment under section 79 of the Family Law Act 1975 (Cth), the wife is entitled to receive any monies held in credit in the name of the husband, Mr Arjuna born on … 1980 in any or all of the following accounts:

a)   P Bank rewards transaction account number …9-4; and/or

b)     Any other P Bank account in the name of the husband in which there is a credit balance;

c)   Commonwealth Bank of Australia complete access account …42; and/or

d)     Any other account in the name of the husband with the Commonwealth Bank of Australia in which there is a credit balance; and

e)   Q Bank cheque account number ...16; and

f)   Q Bank plus account number …16; and/or

g)     Any other account with Q Bank in the name of the husband in which there is a credit balance.

(3)  That in the event that the husband has any monies owing to him by his employer (or former employer) P Bank as a result of the conclusion of his employment with P Bank or the Commonwealth Bank of Australia, then the wife shall be solely entitled to receive those funds.

(4)  That to facilitate Order 2 above, P Bank is requested to assist in the implementation of these Orders and pay, transfer and/or distribute to the wife or as she may direct in writing any funds held in credit in the name of the husband in:

a)   account …9-4, BSB …; and/or

b)     any other account in which there is an amount standing in credit, held by or in the name of the husband.

(5)  That to facilitate Order 3 above, P Bank is requested to assist in the implementation of these Orders and pay to the wife or as she may direct in writing any funds held in credit or owing to the husband colleague ID … as a result of his employment with P Bank and/or cessation of his employment with P Bank.

(6)  That to facilitate Orders 2 and 3 above, the Commonwealth Bank of Australia is requested to assist in the implementation of these Orders and pay, transfer and/or distribute to the wife or as she may direct in writing any funds held in credit in the name of the husband in:

a)   account number …42; and/or

b)     any other account in which there is an amount standing in credit, held by or in the name of the husband.

(7)  That to facilitate Order 2 above, Q Bank is requested to assist in the implementation of these Orders and pay, transfer and/or distribute to the wife or as she may direct in writing any funds held in credit in the name of the husband in:

a)   account number …16;

b)     or any other account in which there is an amount standing in credit, held by or in the name of the husband.

(8) That, by way of interim property settlement, in accordance with section 90MT(1)(b) of the Family Law Act (“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 Commonwealth Bank Group Super, the wife is entitled to be paid by the Trustee of Commonwealth Bank Group Super (“the Trustee”) 100 per cent of the splittable payment and there shall be a corresponding reduction in the amount the husband would be entitled to receive but for these Orders.

(9)  That the Trustee of Commonwealth Bank Group Super 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 Act the entitlement awarded to the wife in the immediately preceding clause of this order; and

b)     Pay the entitlement whenever the Trustee makes a splittable payment from the husband's interest in Commonwealth Bank Group Super.

1. That this Order has effect from the operative time and the operative time is four business days after the date of commencement of these Orders.

2. That, after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”), the husband shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the wife's request in accordance with the SIS Regulations, for the rollover or transfer of the non-member spouse interest to a complying superannuation fund of the wife's choosing in accordance with the SIS Regulations.

3. That the Court notes:

   a) The value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and

   b)     Any payments from the husband's superannuation interest in Commonwealth Bank Group Super made after the Trustee has created a new interest in the wife's name are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.

4. That in the event that either party refuses or neglects to execute any document or instrument necessary to give effect to all or any of these orders and declarations within 14 days of their obligation to do so then the Registrar of the Family Court of Australia is hereby appointed pursuant to s 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the document or instrument and that the party in default shall pay to the other party that party’s costs on an indemnity basis.

5. That otherwise the wife shall retain to the exclusion of the husband and hereafter is declared the sole owner at law and in equity of all items of property including but not limited to money including funds held in bank accounts, jewellery, personal effects and benefits in superannuation funds presently standing in the wife’s name or in her possession and control.

6. That within fourteen (14) days of the making of these Orders, a sealed copy of the Orders be served upon the husband, by the legal representatives of the wife and the Docket Registrar, as follows:

a)At his last known email address – “…”

b)By overseas post to his parents’ address in India as follows:

Mr Arjuna
…
…
…
INDIA

1. That a copy of these Orders may be served upon:

   a)   P Bank Legal, Attention to: The Proper Officer, … and also by facsimile to the P Bank Legal Team at …;

   b)     Commonwealth Bank, Ground Floor, …;

   c)   Q Bank …; and

   d)     The Trustee of Commonwealth Bank Group Super.

IT IS FURTHER ORDERED:

1. That leave is granted for this matter to be re-listed before me on application by either party.

2. In the event that neither party files an application to re-list this matter in 12 months from the date of these orders, these orders shall be considered final and the matter marked as finalised.

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 Carpani & Arjuna 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 3055 of 2017

Ms Carpani

Applicant

And

Mr Arjuna

Respondent

REASONS FOR JUDGMENT

1. Ms Carpani (“the wife”) and Mr Arjuna (“the husband”) were both born in India and married in India in 2008. After the marriage the husband returned to Country M where he had been working and the wife joined him in February 2009.

2. The husband has, since 11 December 2017, chosen to take no part in these proceedings and therefore the history of the marriage is drawn entirely from the wife’s sworn evidence.

3. At the commencement of the relationship, the wife had savings of about $4,000 and no other significant assets. The husband had savings of about $50,000 and shares worth about $18,000.

4. In Country M, the wife did not work but was the homemaker and performed a traditional domestic role. The husband earned a significant income.

5. In March 2011 the wife commenced employment in Country M.

6. The wife alleges that, in the period the parties lived in Country M, there was significant family violence.

7. In January 2012, the wife miscarried.

8. In March 2012, the husband transferred all of their funds in their joint account into an account in his name.

9. The parties separated temporarily in September 2012.

10. In July 2013, the husband moved to Australia when he obtained employment at a substantially increased salary. The wife accompanied him to Australia to assist him to set up his home. She paid her own expenses.

11. They reconciled in December 2013 and resumed their relationship in Sydney in a rented apartment. The wife was not employed.

12. She recommenced employment in February 2015 earning $37,000 per annum.

13. In July or August 2015, the husband transferred about $300,000 from their joint savings to India without reference to the wife. The wife asserts that those funds were then used to purchase real property in India.

14. In July 2015, the wife changed jobs, now earning about $47,000 per annum.

15. The wife alleges that there were incidents of family violence while the parties lived in Sydney.

16. They separated on 18 September 2016. The wife left their shared home and moved into other premises.

17. After separation, the wife changed employment, now earning about $60,000 per annum.

18. Between October 2016 and January 2017, there was correspondence between the wife’s solicitors and the husband in relation to an appropriate property settlement.

19. On 6 February 2017, without notice to the wife, the husband transferred $95,000 from his Australian bank account to India.

20. On 21 April 2017, the wife received an email from the husband attaching part of a petition filed by him in India in relation to the marriage.

21. On 22 May 2017 the wife filed an Initiating Application in the Family Court of Australia seeking orders for property settlement and interim anti-suit injunctions.

22. The interim application was listed on 31 May 2017 when the husband undertook, pending further order, not to proceed further in India and not to sell, transfer or encumber the property in India. The husband was ordered to file a Response, Financial Statement and an affidavit in response to the interim application.

23. The application for an anti-suit injunction was listed for 21 June 2017.

24. On 20 June 2017, the husband filed a Response to the Initiating Application seeking a permanent stay of the wife’s application.

25. On 21 June 2017, Stevenson J adjourned the application, continuing the husband’s undertakings.

26. Her Honour heard the anti-suit application and delivered judgment on 4 August 2017, refusing the husband’s application for a stay of the Australian proceedings and restraining the husband from further proceeding in India.

27. The husband instructed new solicitors who filed a Notice of Address for Service.

28. On 22 September 2017, the matter was listed before a Registrar and the husband was directed to file an amended Response.

29. The husband provided limited financial disclosure by documents.

30. The matter was listed for Case Assessment Conference on 1 November 2017. The husband was present with his legal representative. A joint balance sheet was tendered. Further orders were made for financial disclosure by the husband.

31. On 11 December 2017, the husband’s solicitors filed a notice of ceasing to Act. Since that date, no communication has been received from the husband, either by the wife’s solicitors or by the Court.

32. On 14 December 2017, there being no appearance by or for the husband, the matter was listed for directions on 14 February 2017. The husband was advised by email of the further listing but did not respond.

33. On 7 February 2018, the wife learned that the husband had resigned from his employment in Australia and returned to India.

34. The wife filed an Application in a Case seeking to restrain the husband from further dealing with assets in Australia and on 19 February 2018 orders were made in accordance with that application. Those orders were served on the husband by email but he did not respond.

35. On 22 March 2018, a Registrar made orders listing the matter for an undefended hearing. The husband was notified of those orders, again by email and again did not respond.

36. On the same day, the wife’s solicitors received documents purporting to be from the “Court Principal Judge Family Court” in City B, India notifying the wife that the “final disposal” of the husband’s suit was listed on 10 April 2018.

37. The husband was notified by the Court and by the wife’s solicitor, to his email address,  that the matter was listed for an undefended hearing on 26 July 2018 but did not respond and did not appear, either in person or by lawyers, at the hearing. The notice was also posted to the husband’s last known address in Australia.

38. I am satisfied that the husband has been given ample opportunity to participate in these proceedings but has chosen not to do so and that it appropriate for the matter to proceed on an undefended basis.

THE PROPERTY OF THE PARTIES

1. At a time when the husband was represented in the proceedings, a joint balance sheet was prepared for the purpose of the Case Assessment Conference. The relevant portions of that document, together with the assertions of the parties recorded thereon, are reproduced below. The husband does not assert that he has any liabilities.

ASSETS
Ownership		Description				Wife/de facto partner's value
1	Husband	Apartment in City D, India (E$345,000)				345,000	0
2	Husband	100 per cent Apartment in City E, India				245,000	150,000
3	Husband	50 per cent Apartment in City F, India (E$560,000)				280,000	67,000
4	Husband	German car				E 16,000	0
5	Husband	Motorcycle				E 30,000	6,000
6	Husband	Commonwealth Bank Account #...42				E 350,000	3,000
7	Husband	Q Bank Account #...16 (at 31.8.17)				E 10,000	10,000
8	Husband	L Bank, India				E 120,000	1,000
9	Husband	P Bank (at 31.8.17)				15,880	15,880
10	Husband	K Bank Country M account (closed)				0	0
11	Husband	Household Contents				NK	5,000
12	Husband	Cash in India (with Husband's Mother)				E 120,000	500
13	Wife	City E India				E 10,000	10,000
14	Wife	Q Bank				E 2,000	2,000
15	Wife	Commonwealth Bank Account #...54				E 5,000	10,000
16	Wife	J Bank				E 10,000	10,000
17	Wife	K Bank Country M account #[XX]				0	10,000
18	Wife	Household Contents				E 1,000	1,000
19	Wife*	Jewellery				E 10,000	E 50,000
20	Wife	R Bank account (Wife's fathers bank account)				0	50,000
Total		$         1,569,880	$           401,380

ADDBACKS
Ownership		Description				Wife/de facto partner's value	Husband/de facto partner's value
21
22
Total		$                      0	$                     0

LIABILITIES
Ownership		Description				Wife/de facto partner's value	Husband/de facto partner's value
23
24
25
26
Total		$                      0	$                     0

SUPERANNUATION
Member		Name of Fund			Type of Interest		Wife/de facto partner's value	Husband/de facto partner's value
27	Husband	Commonwealth Bank Superannuation			Accumulation		131,989	127,000
28	Wife	Government Super			Accumulation		9,868	3,693
Total		$            141,857	$           130,693

NETT TOTAL ASSETS (including Superannuation) $        1,711,737 $          532,073

Notes …

Item No

1

H: Property is owned by Husband’s father and is part of an Army Welfare housing project that only ex-defence forces people could bid for a property in this complex. The Husband’s father commenced the process of acquisition in or about August 2007 (prior to the marriage).   

2

H: Property title is not in the Husband’s name and his only interest is a chose in action under Indian law pursuant to the contract entered into by him. The complex containing the apartment is under construction and the Husband has entered into an Agreement to purchase the apartment.

Total consideration is R8,856,884 of which R7,732,145 has been paid. The land on which the complex is being constructed is subject to litigation being brought by the former owner against the developer. The Husband values his interest in this property at what he has paid to date towards the purchase.

W:  Note that the Husband asserts the value is only in accordance with the payments made to the builder.

3

H: Property title is not in the names of the Husband and his mother. The Husband’s only interest is a chose in action under Indian law pursuant to the contract entered into by him.  The complex containing the apartment is under construction. The Husband and his mother as tenants in common in equal shares have entered into an Agreement to purchase the apartment.

Total consideration is R9,672,858 of which R 6,836,840 has been paid. The Husband values his 50 per cent interest in this property at what he has paid to date towards the purchase.

4

W: The Husband provided a Notice of Disposal of Motor Vehicle, dated 4 August 2017, which notes the sale price of a vehicle as being $3,500. However, this document does not note the name or type of the motor vehicle, therefore we cannot ascertain whether this document was for the sale of the German motorbike.

17

This bank account is closed.

20

This is the Wife’s father’s account.  The Wife has not made any contribution to this bank account and therefore the value of this item is NIL.

1. It can be seen from the joint balance sheet that there is a dispute about the ownership of the apartment in City D and a significant dispute about the value of the two apartments which the husband owns in City E and City F.

2. The wife asserts that the husband has personal property to the value of $661,880 and real estate assets valued at $870,000.

3. The husband admits to having real estate valued at $217,000 and personal assets valued at $41,380. In addition, the husband admits to an interest in superannuation of $130,693.

4. Thus the husband’s case is that his assets are valued at $258,380. The value of his superannuation must be considered in the light of his being 37 years old and thus not entitled to have access to those funds for some time.

5. In her affidavit sworn 21 June 2018, the wife deposed that she has property valued at $40,000 and superannuation of $3,693. Since that estimate of value is not disputed by the husband, it is accepted for the purpose of these proceedings.

6. Thus the pool of assets is valued at not less than $298,380 plus the husband’s and wife’s superannuation.

7. Ultimately, the wife bears the onus of proving the nature and the value of the assets she alleges are held by the husband and that proof will be dependent on evidence from experts in India which is yet to be filed.

1. Documents tendered in the wife’s case establish that the husband’s assets remaining in Australia are:

   Funds held in the husband’s P Bank account                  $6,990.99

   Funds held in the husband’s Q Bank account                 $10,000

   Funds held in the husband’s Commonwealth Bank

   “GroupSuper” superannuation account  $131,989.52

2. The husband’s assets as presently disclosed are valued at not less than $258,380 plus superannuation.

3. The evidence is that those assets were accumulated during cohabitation when the wife was making a contribution as homemaker and also, from time to time, a contribution from employment.

4. The husband has chosen to take no part in these proceedings and thus has not made a full and frank disclosure of his assets or their value. In those circumstances, the Court need not be unduly cautious in making findings in favour of the wife.

5. The cash assets in Australia are minimal. If the wife were to receive the cash of $16,991, she would be in possession of assets worth $56,991 or about 19 per cent of the assets as the husband asserts.

6. If, in addition, she were to receive his superannuation interest in Australia then she would receive about 44 per cent of the assets (including superannuation) before applying a reasonable discount for the fact that she is 36 years old and the superannuation will not be available to her for many years.

7. I am satisfied that this amount is within the reasonable expectation of the wife at a final hearing, having regard to the husband’s non-disclosure and the significant difference between his earning capacity as demonstrated during the marriage and hers.

8. I therefore propose to make an order, by way in interim property settlement, that the wife receive the cash and the husband’s superannuation interests in Australia.

9. I consider the matter to be part-heard before me.

10. The proceedings will be stood out of my list to be restored on application by either party. Should neither party bring an application within 12 months from the date of these Reasons, the orders made herein shall be considered final and the matter marked as finalised.

11. The Docket Registrar is requested to serve a copy of these reasons and orders upon the husband by email and post to his last known address in India.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 31 July 2018.

Associate: 

Date:  31 July 2018