Trivedi & Awasthi (No 3)

Case [2024] FedCFamC1F 371


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Trivedi & Awasthi (No 3) [2024] FedCFamC1F 371

File number(s): SYC 5604 of 2010
Judgment of: BAUMANN J
Date of judgment: 30 May 2024
Catchwords: FAMILY LAW – PROPERTY – Where there was previously a dilemma in the Court being able to make final property adjustment orders that achieved finality for the parties – Overseas pension fund in payment phase – Where it is not possible, because of some unique local laws and regulations in the United Kingdom, to transfer funds in a United Kingdom pension fund to a complying Australian superannuation fund – Final property adjustment orders made to achieve justice and equity for both parties  
Legislation: Family Law Act 1975 (Cth) ss 81, 79
Cases cited:

Brown & Brown [2003] FamCA 1185

Hinkler & Anglin [2020] FamCAFC 167

Johnson & Johnson [2020] FamCAFC 93

Jong & Yeng [2014] FamCAFC 156

Kowaliw & Kowaliw (1981) FLC 91-092

Trivedi & Awasthi [2021] FedCFamC1F 194

Trivedi & Awasthi (No 2) [2022] FedCFamC1F 555

Division: Division 1 First Instance
Number of paragraphs: 37
Date of hearing: 2 June 2023
Place: Brisbane
Counsel for the Applicant: Mr D Dura
Solicitor for the Applicant: Horton Rhodes Legal
Counsel for the Respondent: Mr A Givney
Solicitor for the Respondent: Zraika Partners Lawyers

ORDERS

SYC 5604 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS TRIVEDI

Applicant

AND:

MR AWASTHI

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

30 MAY 2024

THE COURT NOTING

A.The partial property Orders made 27 January 2023 which have been complied with.

THE COURT ORDERS:

1.That Order 2(c) of the Orders made on 27 January 2023 be discharged.

2.That within seven (7) days of the date of these Orders, the parties do all things and sign all documents necessary to cause the sum of £113,830.41 and any accruals on that sum, received by way of Pension Commencement Sum standing to the credit of the husband in the V Bank Account (account number …62) to be paid:

(a)as to 50% of the account balance and any accruals to the wife to an account, either in Australia or the United Kingdom, nominated by the wife in writing to the husband’s solicitors; and

(b)the balance of the account to be paid to the husband or to remain, as the husband elects, in his account as his sole entitlement.

3.That in the event the husband receives or is entitled to receive payments from his United Kingdom G Company pension fund via the income stream established for his benefit since the payment of the earlier lump sum component, then:

(a)the husband shall do all acts and things and sign all documents necessary to instruct or direct the Trustee of the G Company (UK) Fund to direct payment of one half of each pension payment payable to the husband to be paid to the wife into an account nominated by the wife in writing (whether in Australia or the United Kingdom);

(b)the wife…

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AGLC
Trivedi & Awasthi (No 3) [2024] FedCFamC1F 371
Case
[2024] FedCFamC1F 371
Decision Date

CaseChat Overview and Summary

In the matter of Trivedi & Awasthi (No 3), the Federal Circuit and Family Court of Australia was tasked with determining the final property adjustment orders between the parties, specifically addressing the husband’s overseas pension fund in the United Kingdom. The core dispute centred around the impossibility of transferring funds from the United Kingdom pension fund to a complying Australian superannuation fund due to unique local laws and regulations in the United Kingdom. The court was required to decide on the equitable distribution of the husband's United Kingdom pension fund and the lump sum payment made to him, considering the complexities and legal barriers in transferring these funds.

The legal issues before the court included whether it would be just and equitable to require the husband to pay a capital sum to the wife based on an estimate of the future income stream and whether the court could make final property adjustment orders that achieved finality for the parties without keeping them financially connected. The court held that requiring the husband to pay such a sum would not be just and equitable, given the unique characteristics of the financial interest accrued during the marriage and crystallised in the United Kingdom. The court exercised its discretion to make an order that it considered would achieve justice and equity for both parties.

Baumann J, exercising the court's discretion, made an order to distribute the husband's United Kingdom pension fund and the lump sum payment to the wife in a manner that sought to cover all eventualities. The court made provisions for the husband to transfer 50% of the lump sum payment and half of each pension payment to the wife, with the wife being responsible for providing account details for these payments. The husband was also required to transfer a joint bank account to his sole ownership. Each party was to retain their respective properties and be solely responsible for their debts and liabilities. The court dismissed all pending applications except for costs, providing directions for any future application for costs.

The final orders included specific directions for the distribution of the husband's United Kingdom pension fund and lump sum payment, the transfer of a joint bank account, and provisions for each party to retain their respective properties. The court also set out detailed directions for any future application for costs, ensuring that any such application would be considered on the papers.

Orders

Orders of the court

SYC 5604 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS TRIVEDI

Applicant

AND:

MR AWASTHI

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

30 MAY 2024

THE COURT NOTING

A. The partial property Orders made 27 January 2023 which have been complied with.

THE COURT ORDERS:

1. That Order 2(c) of the Orders made on 27 January 2023 be discharged.

2. That within seven (7) days of the date of these Orders, the parties do all things and sign all documents necessary to cause the sum of £113,830.41 and any accruals on that sum, received by way of Pension Commencement Sum standing to the credit of the husband in the V Bank Account (account number …62) to be paid:

(a) as to 50% of the account balance and any accruals to the wife to an account, either in Australia or the United Kingdom, nominated by the wife in writing to the husband’s solicitors; and

(b) the balance of the account to be paid to the husband or to remain, as the husband elects, in his account as his sole entitlement.

3. That in the event the husband receives or is entitled to receive payments from his United Kingdom G Company pension fund via the income stream established for his benefit since the payment of the earlier lump sum component, then:

(a) the husband shall do all acts and things and sign all documents necessary to instruct or direct the Trustee of the G Company (UK) Fund to direct payment of one half of each pension payment payable to the husband to be paid to the wife into an account nominated by the wife in writing (whether in Australia or the United Kingdom);

(b) the wife shall be at liberty to provide a copy of these orders to G Company (UK) or the responsible Trustee for management of the said Fund;

(c) the authority and or direction by the husband under Order 3(a) hereof shall continue and be irrevocable unless there is prior written consent of the wife, during the lifetime of the husband;

(d) in the event G Company (UK) do not, or are not prepared, or unable to act on the husband’s directions under Order 3(a) hereof, then in that event the husband shall cause one half of each pension payment received by him to be paid, within seven (7) days of him receiving the payment, to an account nominated by the wife in writing, whether in Australia or the United Kingdom;

(e) if any pension payments have been received by the husband after 8 February 2023 and before these Orders have been made, then the husband shall pay to the wife half of such payments he received to be paid to the wife in the same manner as now required under Order 3(d) hereof;

(f) each of the husband and wife are to be personally liable for any taxation (whether in the United Kingdom and/or Australia) arising from their entitlement to receive 50% of the funds received by way of periodic payment under these Orders; and

(g) the husband shall keep the wife informed by email of any communication from the G Company (UK) Fund Trustee or manager relating to the benefit the husband is entitled to receive or any new conditions relating to the benefit the husband is entitled to receive.

4. That within seven (7) days, the wife do all acts and things to provide to the V Bank in the United Kingdom, all documents and information reasonably requested to transfer the joint V Bank account (account number…03) to the husband.

5. That each party shall, save for the alteration in respect of the husband’s interest in the G Company (UK) Fund:

(a) retain all real property, personal property (either in Australia or overseas), motor vehicles, Australian superannuation entitlements, furniture and bank accounts (whether in Australia or overseas) in their possession power and control at the date of this Order, to the exclusion of any claim by the other party; and

(b) be solely responsible and otherwise indemnify the other party against claims, for any liabilities, credit card balances or other loans and debts standing in their name at the date of these Orders.

6. That all pending Applications save as to costs are otherwise dismissed.

7. That in respect of any application for costs a party wishes to pursue for the whole or in party of these proceedings, unless otherwise ordered the following directions shall apply:

(a) Any Application for costs shall be filed and served within thirty (30) days, supported by an affidavit setting out the quantification of the costs order sought (or method of assessment) together with any written submissions;

(b) If any such Application is made, the other party shall within sixty (60) days, file and serve a Response supported by an affidavit and written submissions;

(c) Either party shall have leave to file written submissions strictly in reply to any response material fourteen (14) days thereafter; and

(d) Unless otherwise ordered, any Applications for costs will be considered in chambers on the papers.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Mr Givney says, and I accept his submission, that it would not be just and equitable to the husband to require him to pay a capital sum now to the wife, based on some estimate of the likely value of the future income stream (even at a compromised figure of $50,000) and then get his share paid over the many years to follow, and in circumstances where the pension ceases on his death.CONCLUSION If I was persuaded that an order that was just and equitable to both parties could be made and achieved the desire enshrined in s 81 of the Act of finality, with no need to keep these parties financially connected, then that is the order that should be made. However, the difficulties in this case now do not flow from the bitter levels of mistrust and conflict that has engulfed these people since separation in 2008 (16 years ago), but the characteristics of the financial interest which these parties accrued, during their marriage, and remains in the United Kingdom, which has now crystallised. For the reasons set out, in the exercise of the Court’s discretion, I propose to make an order similar to that sought by the husband. Rather than further delaying this matter by getting more evidence or submissions about opening a United Kingdom bank account etc., I make an order which seeks to cover all eventualities. As the order I now make is a final property order, I include some “catchall” provisions. Both parties have sought orders for costs – for all of the proceedings or various events. Whilst I would urge the parties to carefully consider prolonging this litigation by pursuing any costs application – remembering that the general rule under s 117(1) of the Act is that each party shall bear their own costs – I, of course, am not possessed of all the facts to determine at this stage whether or not there are circumstances which would justify an order for costs. In this regard, it was my understanding that the costs of a number of expert opinions received were shared equally – as they should have been. If this is not the case, then ultimately I suspect in any pursued costs application, what actually occurred, will become apparent.

Ratio Decidendi

Legal Principle Established

To try and assist the parties to understand the conclusions I have reached, I make the following findings on the evidence now available, namely:(a)All the efforts between 25 November 2021 and the election made by the husband should be seen as a facilitation to find a way to divide the husband’s interest in the G Company Fund equally with the wife;(b)It was a very complex pathway, however I am satisfied because of some unique local laws and regulations in the United Kingdom, it was not possible to achieve the primary desired outcome initially of having the husband’s interest in the G Company Staff Pension Fund transferred to a complying Australian superannuation fund, despite the appointment of Mr LL of KK Financial Services as the “Pension Transfer Specialist” under the Order made 10 November 2022 and the advice he offered to the parties;(c)This position was confirmed by the email from KK Financial Services dated 7 December 2022;(d)In the shadow of the deadline for the husband to make an “election” by 8 February 2023, further advice was sought by the earlier expert Mr D as to “how it may be possible to proceed in this matter”. His advice is summarised at paragraph 20 of the wife’s affidavit filed 11 January 2023 and essentially provided no solutions and started to discuss, at that late stage, how it would be possible to “value” the United Kingdom interest – almost as if it were an Australian interest. In my view, such an inquiry, motivated by the wife’s understandable position not to take any interest in the form of a future “pension” payment further delayed the matter;(e)I accept, as the wife’s evidence at paragraph eighteen 18 her said affidavit asserts (and was the basis for the submissions of Mr Dura), the wife holds the view that the husband “… has tailored his answers to create an impression of vulnerability so as to prevent the transfer”. The wife has not, I find, established that the husband did so. There was no probative evidence from the United Kingdom trustees or regulatory bodies that the exercise of their discretion may have been any different than ultimately became their position at December 2022;(f)The wife was well aware that the husband was the only person capable of making an election under the Scheme. Again, it is clear that the husband’s position was always not to elect to compute any cash component, preferring to have a lifelong indexed position at the highest rate his interest (whatever its value) allowed. He was compelled by the Court Order made 27 January 2023 to do so against his primary position;(g)The supplementary report of Mr HH dated 23 March 2023 makes clear that the husband did make an election as ordered, with Mr HH opining that:The £113,830.41 monies paid into [Mr Awasthi’s] UK bank account is the “maximum tax-free cash sum available from the Scheme”. However – as presumably [Mr Awasthi] is an Australian tax resident – there will be no tax payable in Australia.Counsel for the husband agreed no tax is payable on the cash component that has been paid.(h)The husband’s United Kingdom pension was estimated by Mr HH to be £17,074.56 per annum. Furthermore, Mr HH opined that the husband “should not have a UK withholding tax deducted and only have tax payable on this pension in Australia”. This parties accept this opinion; and(i)It seems, pursuant to the wife’s clear instructions, Mr HH was invited to do some form of analysis or valuation of the value of at least the United Kingdom pension income stream – adopting to some extent Australian superannuation scheme valuation principles. As I will explain in my conclusions, this attempt for an analogous comparison is of little assistance.DISCUSSION AND CONSIDERATION OF PROPOSED ORDERS