Trivedi & Awasthi (No 3)
[2024] FedCFamC1F 371
•30 May 2024
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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Trivedi & Awasthi has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION
On 25 November 2021, the Court delivered Reasons in respect of a property trial between the Applicant wife, Ms Trivedi and the Respondent husband Mr Awasthi (see Trivedi & Awasthi [2021] FedCFamC1F 194). After receiving further submissions on 25 January 2022, what must constitute as a partial property order was made, as set out at Appendix One to these Reasons.
The Orders may be seen as unusual in some respects but were made in the following relevant context:
(a)The parties (who in these Reasons I call the husband and wife although they are divorced) married in 1994 and separated in 2008. They have two adult sons;
(b)The parties were married in the United Kingdom and spent much of the early years of their marriage in the United Kingdom before returning to Australia in 2003;
(c)For the reasons published, the Court decided to assess contributions to the parties’ property interests in three separate pools, being:
(i)non superannuation interests totalling $1,155,150;
(ii)superannuation and like interests totalling $398,014; and
(iii)the husband’s G Company (UK) pension with an agreed value at that time of $850,800.
(d)Applying the percentages set out in my Reasons, the husband was to pay the wife $201,906.90, with the parties to retain their own interests in Pool One and Two as identified. Whilst a delay occurred, the funds were paid by the husband to the wife;
(e)At paragraphs 81(c) to (d); 82, 83, 84 and 85 of the earlier Reasons, the Court identified the dilemma confronting the Court in achieving orders which secured “finality” consistent with the aim set out in Section 81 of the Family Law Act 1975 (Cth) (“the Act”), and equality in respect of the G Company Fund. The paragraphs referred to have demonstrated the issues remained alive, despite significant further submissions and Court events, often shaped by expert advice;
(f)Whilst seeking to navigate this complex factual and legal pathway, by 4 August 2022 the Court published further Reasons (see Trivedi & Awasthi (No 2) [2022] FedCFamC1F 555) and made further Orders, appointing an expert to report as to, in effect, the husband’s capacity to have his interest in the G Company Staff Fund transferred to a complying Australian superannuation fund. It was always the desire of the wife to “repatriate” to Australia the husband’s interest in the United Kingdom, as if achieved, such an interest would be amenable to a “splitting” order under Australian legislation. That was clearly seen as a simple solution. The husband had always asserted a consistent position that he retain a pension entitlement in the United Kingdom, which would “split” equally with the wife;
(g)The characteristics of the husband’s entitlement under the G Company Fund rules allowed the husband to elect to convert his benefit, subject to the Fund’s discretion, a lump cash sum. The election had to be made by the husband by 8 February 2023;
(h)For the reasons explained next, the husband made an election, but only part of the entitlement was converted to a lump sum (approximately £113,000), which sum was paid into a United Kingdom bank account, with the husband being restrained from using those funds as a result of an Order made 27 January 2023;
(i)The effect, the husband says, of a lawful exercise of discretion by the United Kingdom trustee, is that the remaining balance of the Fund is now only available as an indexed pension, paid to him in the United Kingdom estimated to be approximately £17,000 per annum; and
(j)After the Reasons and Orders made on 4 August 2022, further Orders were made on:
(i)7 September 2022
(ii)10 November 2022;
(iii)8 December 2022;
(iv)21 December 2022;
(v)27 January 2023;
(vi)19 January 2023,
all which speak for themselves.
Importantly, the Order made 27 January 2023 provided as follows:
1.That not later than 4.00pm on Monday, 30 January 2023, the Applicant husband do all things, sign all documents and take whatever steps are necessary to make an election to cause the maximum amount from his UK [G Company] Pension to be converted to cash by way of a lump sum payment from the Husband’s UK [G Company] Pension fund upon his retirement date of 8 February 2023 and paid into a UK bank account in the Respondent husband’s name.
2.That forthwith upon the Respondent husband making the election as referred to in the preceding Order and receiving the funds into his UK bank account, the Respondent husband shall:
a.Provide to the Solicitors for the Applicant wife copies of all documents provided to [G Company] and received from [G Company] in relation to the election made by him and the payment made by [G Company] following the election;
b.Provide to the Solicitors for the Applicant wife a copy of the bank statement evidencing the deposit of the funds from [G Company] into his UK bank account; and
c.Be restrained from doing any act or thing to withdraw, transfer and otherwise deal with the funds received by him from [G Company].
3.That not later than 4pm on Monday, 30 January 2023, the Respondent husband shall also do all things, sign all documents and take whatever steps are necessary to make an election to cause the balance of his entitlements in his UK [G Company] Pension Fund to be paid to him as a periodic pension paid on a bi-annual basis.
4.That within 7 days of receipt of the documents from the Respondent husband as provided for in Order 2a above, the parties shall instruct [Mr HH] by joint letter of instruction to provide an update to his report dated 20 January 2023.
5.That these proceedings listed for Discrete Hearing on a date to be fixed, for half a day in the Federal Circuit and Family Court of Australia (Division 1).
Finally, a discrete hearing was conducted by electronic means on 2 June 2023, where Mr Dura of Counsel appeared for the wife and Mr Givney of Counsel appeared for the husband.
With the husband’s interests in the G Company Fund having crystallised, the discrete hearing (when neither party sought to cross examine the witnesses offered to the Court) was focused on the orders the Court should make to achieve the intended outcome of a 50/50 division of the husband’s G Company Fund interests. That may have again seemed an easy exercise. It was not, but the Court acknowledges that the failure to deliver reasons in a more prompt manner is regrettable and has likely caused further anxiety to the parties – who remain totally estranged without a hint of trust or mutual respectful. I pay tribute to Counsel and their instructing solicitors who have, I accept, done everything they could to seek to resolve this remaining issue between the parties.
THE DISCRETE ISSUE
The wife, in her case outline filed 26 May 2023 contained written submissions by Mr Dura and attached further evidence, being:
(a)Annexure A – an email dated 15 March 2023, being instructions to finance professional Mr HH; and
(b)Annexure B – a letter and report from Mr HH dated 23 March 2023.
Additionally, the wife relied upon the earlier Reasons of the Court and Orders as well as the affidavit of the wife filed 11 January 2023 and the earlier report of Mr HH filed 27 January 2023. I have read and considered this material and the further oral submissions of Mr Dura.
The husband relied upon the short outline of argument prepared by Mr Givney which attached a proposed minute of order, and tendered by way of further evidence:
(a)an email from Ms JJ from KK Financial Services dated 7 December 2022; and
(b)exchanges of emails between the respective legal firms relating it seemed to the engagement of Mr HH as a single expert pursuant to the Order made on 19 January 2023.
Additionally, the husband relied upon the earlier Reasons and Orders as well as the affidavit of the husband filed 24 January 2023. I have read and considered the material and the further oral submissions of Mr Givney.
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
At the onset, it needs to be recalled that at the substantive property hearing the existence of the husband’s interest in the G Company Fund was disclosed very late in the proceedings.
However, it was accepted that Australian superannuation splitting powers were not available to the Court. Much of the energies were devoted to, and expert evidence adduced, to assist the determination of whether it was possible to bring the benefit into the Australian jurisdiction.
Notwithstanding the husband’s desire to have a full pension, and the wife’s equally strong desire to have no pension at all, the accumulated advice of the experts and the steps taken (often compelled by court orders), did not achieve either of the parties’ primary position.
I am not satisfied the husband could have done more to secure what the wife sought to achieve. As Mr Dura was bound sensibly to accept, the husband could not mislead the United Kingdom authorities. Even if the wife says the husband allowed an impression to be formed (incorrectly in her view) that the husband was “vulnerable”, there is no persuasive evidence that the exercise of discretion from the United Kingdom authorities vested with the power to make the decision to allow transfer or not would have been any different.
In these circumstances frankly, we are now in a much different position in some respects to the situation at the time of the first published Reasons, namely:
(a)although the notional value of the husband’s interest, for the trial in August 2020 was agreed at AUD$850,890, there was always am uncertainty about the “ultimate nett benefit achieved and available to the husband from the [G Company] Pension Scheme (at [81(d)]);
(b)the submissions of both Counsel reflect an acceptance, on the evidence now available, that the figure of AUD$850,890 dropped significantly due to market conditions, currency fluctuations and the like – to somewhere closer to $600,000. The husband has no responsibility for that “loss” – and Mr Dura accepted he was not running a form of Kowaliw & Kowaliw (1981) FLC 91-092 wastage argument;
(c)the creation of three separate pools, facilitated a calculation of the sum payable by the husband to the wife by reason of the findings relating to Pools One and Two; and
(d)the Court has always been acutely aware of a desire to achieve finality and complete financial separation, but the jurisdictional limits around the foreign United Kingdom entitlements were identified as a difficulty – not overcome by, at the time, seeking to somehow “adjust” the interests in Pools One and Two, for some future entitlement in Pool Three (see [83]). It was perhaps overly optimistic to anticipate these parties to reach some commercial compromise. This then committed the parties to the extensive (and expensive) exercise around trying to get the funds into Australia in some way.
Simply put, all these endeavours failed, and I am not satisfied this arises from any improper actions of the husband.
WHAT DO WE DO NOW TO ENSURE JUSTICE AND EQUITY IS ACHIEVED?
My discussions with the two learned Counsel (who were the trial Counsel) clarified that the Court has not exhausted its powers under s 79 of the Act. Mr Dura confirmed, sensibly, that with no final orders made, the remedial powers available in some circumstances under s 79A of the Act are not yet enlivened.
No submission was made that the Court should seek further evidence from both parties so as to ascertain their current financial position, with a view to considering holistically what orders do justice and equity on a newly constituted property pool/s – taking into account not only the fact that partial property orders were made, but clearly the need to cause revaluations of the only real estate interest in the parties’ asset pool – the wife’s nett interest in B Street, Suburb C.
It was never an application before the Court to adjourn the proceedings until the husband’s interest crystallised in the G Company Fund.
It follows in my view that as messy as this case has become, the Court’s attention should be focused on how the crystallised interests should be now adjusted to achieve the equal division that the Court regarded as just and equitable. In circumstances where this interest accumulated whilst the parties (particularly the husband) lived in the United Kingdom well before 2003, that they now both carry some of the logistical impediments from having an interest in a foreign asset, is not unfair.
I now come to consider the two options identified by the parties advanced to the Court.
THE WIFE SEEKS
At the core of the wife’s proposed orders (being Appendix Two to these Reasons) is that her orders are the only way that finality of the proceedings can be achieved. Mr Dura referred the Court to several authorities which he contends should persuade the Court to accept his submission (see Jong & Yeng [2014] FamCAFC 156 at [36]; Brown & Brown [2003] FamCA 1185; Johnson & Johnson [2020] FamCAFC 93 at [36] and Hinkler & Anglin [2020] FamCAFC 167).
In my view, the facts of this case are distinguishable from all the cases cited – in fact, I will go so far as to say that experienced Counsel did not identify a decision which has considered the factual difficulties of this case.
Australian law would permit the parties’ superannuation interest in its payment phase to be split – even to the extent that a monthly “pension” payment is paid separately by court order to both parties for many years. It reflects, in my view, that if that is the best that the Court can do because of the characteristics of the interest, to achieve justice and equity, then that is what should be done.
As a result, I am not persuaded that an order that seeks to achieve a distribution of the future United Kingdom pension payments due to the husband (which I accept will be paid in half yearly payments) “fails to afford the parties finality of proceedings as required by s 81”.
Mr Dura contends in his carefully prepared submissions that it is not just and equitable to the wife to:
(a)expect her to be tied to the husband for his life to get her share of the pension;
(b)that the clean break principle is achieved by the husband paying the wife a “compromised” sum now which she is prepared to accept of $50,000; and
(c)the enforceability of any order made as contended for by the husband, is questionable and would be difficult to achieve without significant cost to the wife who may, in the event of a default, need to launch legal proceedings again – possibly in the United Kingdom. Furthermore, the history of the husband’s failure to pay the amount under the earlier Order without delay means it is likely at some time in the future an issue of payment will arise; and
(d)the Court should not, even if the power exists which the wife challenges, order the wife to open and maintain a United Kingdom bank account for the purpose of receiving a payment in the country and currency in which the husband will receive his benefit; and finally
(e)The husband has previously given evidence that he feels no need to remain living in Australia, especially where his relationship with his two sons is estranged. As a result, and as he remains a British citizen, he could return to live permanently in the United Kingdom at any time. The late offer during submissions by Mr Givney of accepting an order that the husband will give the wife notice if he intends to return to the United Kingdom permanently, Mr Dura says is of little benefit to the wife.
THE HUSBAND SEEKS
The orders the husband seeks are as follows:
1.That the wife’s Application in a Proceedings filed on 12 January 2023 be dismissed.
2.That Order 2(c) made on 27 January 2023 be discharged.
3.That the Husband pay the sum of £113,830.41 received by way of Pension Commencement Sum and held in the Husband’s [V Bank] Account (Account no. […62]) as follows:
(a)the sum of £56,915.21 (representing 50% of the Pension Commencement Lump Sum) be paid to the Wife into a bank account of the wife held in the United Kingdom within 7 days of the wife notifying the Husband of the details of that account; and
(b)the sum of £56,915.20, (representing the balance of 50% of the Pension Commencement Lump Sum) to be paid to the Husband forthwith.
4.That each of the Husband and the Wife be personally liable for any taxation (whether in the United Kingdom and/or Australia) arising on their respective 50% share of the funds (if any) received pursuant to Orders 3(a) and (b).
5.That the Husband cause to be paid to the Wife, 50% of the periodic pension income stream he receives from the [G Company] Staff Pension Fund (after the deduction of all taxation and fees) within 21 days of such receipt into the Wife’s nominated United Kingdom bank account for so long as the Husband receives a pension income stream from the [G Company] Staff Pension Fund.
6.That each of the Husband and the Wife be personally liable for any taxation (whether in the United Kingdom and/or Australia) arising on their respective 50% share of the funds received by way of periodic pension from the [G Company] Staff Pension Fund.
7.That within 48 hours, the Wife do all acts and things to provide to the [V Bank] Remediation Team in the United Kingdom all documents and information required by that organisation to transfer the joint [V Bank] Account […] (Account no. […03], sort code […]) to the Husband.
8.That the wife pay the husbands costs of these proceedings.
Simply, it would require the husband to pay the wife 50% of the lump sum payment received “into a bank account of the wife held in the United Kingdon”, and 50% of each instalment he receives from the G Company Staff Pension Fund into the future, again into the wife’s nominated United Kingdom bank account.
Apart from the earlier arguments opposing this order advanced by the wife as summarised above, the wife says she has no desire to open and maintain a United Kingdom bank account. It is true that the Court has no current evidence about any impediments to a non-United Kingdom resident opening or operating a United Kingdom bank account. Whist is it true that at the time of the trial, and on the basis of the husband’s order even now, the parties operated a joint V Bank account, that does not entirely cure the absence of evidence now about any impediments to the wife opening a new account.
No evidence that I recall in this case has been produced by the Trustee of G Company Fund indicating if they are able or prepared, on the written direction of the husband as the beneficiary of the payment, to distribute the payment equally to, for example, two separate United Kingdom bank accounts. Nor has any evidence been produced to establish that the Trustee would not pay the instalment half yearly to an Australian bank account. The Court can accept that there are many Australian residents who receive into their Australian bank accounts a “pension” payment from a foreign country. I do not ignore that issues in the future arising from currency fluctuations could occur.
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.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 30 May 2024
APPENDIX ONE
1.That within forty five (45) days of the date of these Orders, the husband cause to be paid to the wife or as she may direct in writing, the sum of $201,906.90 (less one half of the fees paid by the husband to Mr D).
2.That within forty eight (48) hours, the parties instruct Mr D, as set out in the letter of instructions marked as Exhibit 1 today, with the husband to provide his input to the letter within forty eight (48) hours, and the wife’s lawyer otherwise being at liberty to amend that letter as appropriate and send same to Mr D in the absence of the husband’s input within the required time.
3.That within forty eight (48) hours, the husband provide to the wife a document from the G Company Pension Scheme which indicates the current value of the fund with such document to be provided by the wife to Mr D.
4.That the parties provide Mr D any information or documents he may request within fourteen (14) days of such request being made.
5.That the parties shall meet the costs of Mr D equally.
6.That the husband be restrained from making an election and/or decision to the G Company Pension Scheme to access his pension entitlement without first obtaining the written consent of the wife to do so.
7.That the husband be restrained from causing the G Company Pension Scheme to pay to him a sum in excess of 50% of the fund.
8.That leave be granted to the parties to provide a copy of these Orders to the Trustees of the G Company Pension Scheme.
9.That these proceedings be adjourned for further Oral Submissions at 9.30am on 21 March 2022 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
10.That the parties have leave to appear by telephone on 21 March 2022 by using the Microsoft Teams conferencing system as follows:
a.The parties shall click the below link (if accessing this Order electronically) to join the Microsoft Teams conferencing system, by 9.25am on 21 March 2022; or
b.They shall each telephone … by 9.25am on 21 March 2022;
c.They shall each then enter the pass code …#; an
d.Hold the line until the Court is ready to connect and proceed with the matter.
11.That each party shall file and serve a minute of final orders sought by 4.00pm on 14 March 2022.
12.That the parties be at liberty to apply to re-list the proceedings should the expert report of Mr D be available before 4 March 2022.
APPENDIX TWO
1.That within 48 hours of the date of these Orders, the parties do all things and sign all documents necessary to cause the sum of £113,830.41 of the funds standing to the credit of the Husband in the V Bank Account (account number …62) to be paid to the Wife to an account nominated by the Wife in writing to the Husband’s Solicitor.
2.That within 48 hours of the date of these Orders, the Husband do all acts and things to cause the sum of $50,000 to be paid to the Wife to an account nominated by the Wife in writing to the Husband’s Solicitor.
3.That pending compliance with Orders 1 and 2 above, the Husband be restrained from:
3.1 Selling the shares he holds in J Company;
3.2 Drawing on his savings held with ANZ in Australia and V Bank in the United Kingdom (save and expect for meeting his ordinary living expenses);
3.3 Drawing on the following investments in the United Kingdom without the written consent of the Wife or Order of the Court:
3.3.1 MM Company;
3.3.2 Super Fund 2, Super Fund 5 and Super Fund 6;
3.3.3 NN Company; and/or
3.3.4 OO Company.
4.That, in the alternative to Order 2, in the event that Husband receives periodic payments from the Husband’s UK G Company pension fund via the income stream, the Husband shall do all acts and things and sign all documents necessary to instruct G Company (UK) to direct the 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 and the Wife shall be at liberty to provide a copy of these Orders to G Company (UK) together with a direction to pay nominating her bank account.
5.That in the event that G Company (UK) do not, or are not prepared to, act on the instructions referred to in the preceding Order, then the Husband shall cause one half of each pension payment received by him to be paid to the Wife into an account nominated by the Wife in writing within 48 hours of him receiving a payment.
6.That the Husband pay the Wife’s costs of and incidental to these proceedings.
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