Bhatt & Solanki [2023] FedCFamC2F 690

Bhatt & Solanki [2023] FedCFamC2F 690 (15 June 2023)

Relationship Details

• Type: Marriage
• Duration: Married in 2008, separated on 31 December 2018, and divorce order granted in late 2022. Total duration: approximately 10 years.
• Ages at Judgment: Husband 52, Wife 48

Children

• Children from Relationship: None
• Children from Previous Relationships: The wife has an adult child from a prior marriage who lives overseas.

Initial Financial Positions

• Husband:

  • Arrived in Australia in 1994 on a student visa.
  • Employed as a customer service officer in 2009 and later transitioned to various positions, including a transport worker post-separation.

• Wife:

  • Moved to Australia in 2008.
  • Initially not engaged in paid employment, later worked as a customer service officer and held various roles throughout the relationship.
  • Her English was moderate on arrival and her overseas qualifications were not shown to be recognised in Australia.

Contributions During the Relationship

• Financial Contributions:

  • Both parties contributed financially during the marriage to the best of their respective abilities. The two Australian properties were bought during the relationship from savings and mortgages.
  • The husband earned more. His voluntary redundancy package of $42,000 accrued during the relationship.
  • The wife's parents bought a block of land overseas for the parties in about 2010, and in 2011 gave the wife $10,000, which with $6,000 of the parties' savings later funded a block in her name.

• Non-financial Contributions:

  • The court found that the wife made the higher non-financial contributions as homemaker.
  • The wife alleged that family violence by the husband made her contributions more onerous, but the court was not satisfied that her evidence showed this, so the Kennon claim failed.
  • No children were involved requiring parenting contributions.

Post-Separation Contributions and Actions

• Financial Contributions:

  • The husband managed and maintained both Australian properties and paid their outgoings, while having the benefit of living in one of them.

• Non-financial Contributions:

  • The husband continued living in the Suburb C property, and the wife had to pay rent elsewhere.

• Dissipation of Assets:

  • The wife conceded a notional add-back of $39,547 of her post-separation withdrawals. The husband's claims to add back a further $26,770 (her donations and an investment from her post-separation income) and her $10,000 early release of superannuation were rejected.

Current Financial Position & Property Pool

• Current Income:

  • Husband earns approximately $122,000 gross annually.
  • Wife earns approximately $59,000 gross annually.

• Current Property Assets:

  • Suburb E and Suburb C properties in joint possession, subject to final orders.
  • Properties in Country Y, one held solely in the wife's name and one jointly.
  • Vehicles and other personal assets.

• Superannuation Balances:

  • Husband: $134,000
  • Wife: $20,580

• Liabilities:

  • Husband's asserted personal loans totalling $11,000 were treated as a liability.
  • Husband's credit card debt of $4,266 was not included as a liability.

• Total Value of Property Pool:

  • Non-superannuation property: $1,232,859
  • Superannuation property: $154,580
  • Total: $1,387,439, treated as a single pool

Assessment of Contributions and Future Needs

• Contributions:

  • Assessed holistically as equal (50% each): the husband's greater financial contributions were balanced by the wife's greater homemaker contributions.

• Future Needs Adjustments:

  • An adjustment of 2.5% (about $34,686) in favour of the wife, mainly for the disparity in income: the husband earns about $122,000 a year and the wife about $59,000.

• Final Division:

  • Wife to receive 52.5% of net property, amounting to $728,405.
  • Husband to receive 47.5%. The wife keeps the Suburb E property and her overseas block, and the husband keeps the Suburb C property and pays the wife $260,389.

Unique Aspects

• The husband sought 80% on contributions; the court found equal contributions despite his higher income, because of the wife's homemaking.
• The husband's further add-back claims against the wife's post-separation income and spending were rejected, beyond the $39,547 she conceded.

Summary

The court found a just and equitable distribution by issuing orders for the transfer of property interests, guided by careful consideration of financial and non-financial contributions and future needs. The wife's earning capacity, post-separation living arrangements, and both parties' superannuation were pivotal considerations in shaping the ultimate property division.

The law since this decision

This case was decided before 10 June 2025. From that date the Family Law Act 1975 (Cth) sets out the steps for a property settlement in s 79(3) to (5), and the court must consider the effect of family violence on each party's contributions (s 79(4)(ca)) and on their current and future circumstances (s 79(5)(a)), and any material wastage of property (s 79(5)(d)). In Western Australia, a property case between married couples is decided under that Act in the Family Court of Western Australia. A case between de facto partners in Western Australia is decided under the Family Court Act 1997 (WA), which has not adopted those 2025 changes.