Adani & Mehta [2025] FedCFamC2F 1140 (20 August 2025)

(a) Volume ... Folio ...;

(b) Volume ... Folio ...; and

(c) Volume ... Folio ....

1. The husband is appointed as the trustee and is permitted to sign all documents on behalf of the wife for the purposes of:

(a) The transfer and assignment of the wife's interest in the partnership to the husband and to give effect thereto the transfer to the husband the wife's interest in all assets of the partnership including but not limited to the land and improvements thereon comprised in:

(i) Certificate of Title Volume ... Folio ..., being Section ... contained in the Area named Town D, Region of Town D in the State of South Australia;

(ii) Certificate of Title Volume ... Folio ..., being Section ... contained in the Area named Town D, Region of Town D in the State of South Australia; and

(iii) Certificate of Title Volume ... Folio ..., being Allotment ... contained in Deposited Plan ..., in the Area named Town D, Region of Town D in the State of South Australia;

1. That the husband do indemnify the wife with respect to all liabilities of the partnership, past, present and future.
2. That the parties do otherwise retain the assets, liabilities and financial resources in their respective names and possession.
3. The Applicant is to serve a copy of this judgment and the published orders made this day on the Respondent at her last known email address.

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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons for judgment relate to matrimonial property proceedings, in which one party has had limited involvement and the spouses themselves have been separated for many years, leading separate financial lives. They have no children.
2. In general terms, it is the position of the applicant that he made a significant contribution of capital, at the start of the parties' marriage, which warrants a degree of special recognition in how the court assesses each party's respective financial contributions made in the marriage.
3. It is the husband case that this was the sole contribution which enabled them to acquire the property - a fruit farm - which is the focus of these proceedings, in the sense that the partnership of which the wife remains a part, is the only identifiable and tangible asset remaining to be subject to the court's order.
4. It is the husband's case that the wife has never taken any active role in respect of this partnership. In addition, it is his case that the respondent has been afforded ample opportunity to take part in these proceedings and, in all these circumstances, it would be unfair to him if they cannot be resolved on an undefended basis.
5. Further, he points to the fact that the parties themselves have been separated for almost a decade now, during which period he worked continually on the farm, receiving modest income and so alone of the two spouses has made significant contribution to conserve and maintain the farm.
6. In these circumstances, he contends that it is just and equitable that each party retain the property in their respective control. What property the wife currently has is not known to the husband as she has not disclosed her financial affairs. However, in this context he points to the fact that, at separation, the wife took with her a significant amount of gold bullion.
7. Essentially, the husband contends that considerations of fairness dictate that this action should be taken into account by the court. Given his valuation of the gold, at present values, when put alongside the value of the partnership, this would represent a 95/5% division in his favour.
8. In what are highly idiosyncratic and unusual circumstances, the husband contends that, although his would result in him retaining all items of property, currently able to be earmarked by the court, given his contributions, the length of separation and the wife's total lack of involvement with the farm, this represents a just and equitable outcome.
9. These reasons for judgment are directed to resolving these various issues, which are not without their challenges, and so formally ending the parties' technical financial relationship with one another, which has had no practical implications for a long period of time.

1. The applicant in the proceedings is Mr Adani ("the husband"). The respondent to the proceedings is Ms Mehta ("the wife"). They married, in India, in 2004 and separated finally, in rural South Australia, in January of 2016, when the wife abruptly left Australia and returned to India, taking with her an amount of gold bullion and cash in an amount of $10,000.00.
2. Given what have been characterised as the idiosyncratic circumstances of the case, it is the position of the husband that it is just and equitable that the court finalise his application on an undefended basis. In practical terms, this will entail him retaining all of the parties' interests in a fruit farm, located at Town D, in the Region E area of South Australia and the remaining water rights relating to it.
3. In particular, it is his case that, at the commencement of the parties' marriage, he already owned a modest rural property, in New Zealand, which allowed him, along with other family members, to acquire the fruit farm, which he continues to work, in partnership with his nephew and his nephew's wife.
4. Their names are Mr B and Ms C. The farm occupies three distinct titles. The wife was also a partner in the business and a joint tenant, in half shares with the husband, on each of the relevant titles, whilst Mr B and Ms C hold the other half, also as joint tenants.
5. It is his case that his efforts, in the period since, have preserved the property - essentially the half interest in the partnership, which trades as B & C and Adani & Mehta, with no assistance whatsoever from the wife. In practical terms, the assets of the partnership consist of:
   • The three properties constituting the orchard. These have been formally valued;
   • Its plant and equipment, which has been depreciated to nil but not formally valued;
   • Its water licences;
   • Motor Vehicle 1 valued at approximately $7,000.00;
   • The proceeds of a partial sale of water rights sold in June of 2025 and held in trust.
6. In round terms, the husband calculates this to be an amount of $914,057.00. It does not include the gold bullion, which he asserts the wife retains, which he values on the basis of current gold prices to be worth about $40,000.00. On my calculations this would equate to a division of around 95/5% in the husband's favour.
7. Since 2022 conditions in the fruit industry have been difficult and the orchard, which is at the centre of these proceedings has also been subject to frost and hail damage of its crop in 2022; 2023; and 2024. Further, prices have been poor for the fruit in 2025.
8. The income statements provided by the husband for these years (2022 - 2024) indicate that monies received from the sale of fruit by the partnership has diminished from about $265,000.00 in 2022 to $92,000.00 in 2024. It is the effect of the husband's evidence that the current year is no better.[1]
9. At the hearing of the matter a letter was tendered on behalf of the husband from the partnership's accountant, which indicates a further loss of $78,834.00 is anticipated for the financial year ending in 2025.[2]
10. As will be detailed in due course, in order to keep the partnership viable, it has been compelled to sell some of its most valuable assets, which are the permanent water holdings which were attached to the land, which appear to have dramatically increased in value. Each of the partners will need to account for any capital gains arising from these sales in their respective personal income tax returns.
11. In the past, the orchard has provided the husband with a modest income, which he estimates to have been between $50,000.00 and $60,000.00 per annum. However, although he takes some of his living expenses from the business, in taxation terms, neither he nor the partnership have received any income for the past three years.[3]
12. As the names of the respective parties indicate, they each have an Indian background. The marriage between them was an arranged one. Accordingly, the case also has cultural overtones, which adds to its complexities, although the extent of the property concerned must be considered modest.
13. The husband was born in India in 1963. He has had limited education and grew up on a farm, in Region F, owned by his family. He describes his background as modest. His only skills are as an agricultural worker.
14. Mr Adani is close to his nephew Mr G ("Mr G"), who appears to look out for him. Mr G is Mr B's brother and Ms C's brother-in-law. The husband has limited English and speaks Language F as his first language. I accept his evidence that he has limited understanding of financial matters, which he largely leaves to his nephew to take care of, on his behalf.
15. Although the wife has taken some limited part in these proceedings, and, at one stage instructed solicitors in them, she has not filed any affidavit material or formal documents in the proceedings. As a consequence, I have been provided with little evidence regarding her background other than she was born in India in 1964 and when the husband last knew of her, obviously over 9 years ago now, she enjoyed good health.
16. In 1989, Mr G, who had earlier emigrated to New Zealand, sponsored the husband, who was then single and aged in his mid-twenties, to come and live in New Zealand. He was able to obtain employment doing what he had always done - working as a farm labourer. He lived frugally and earnt a modest income.
17. In 2001, he was able to purchase a vacant block of land at City H for the sum of NZ$130,000.00, which was financed by his saving of about NZ$40,000.00 and a mortgage advance for the remainder.
18. In 2003, the marriage between the parties was arranged by respective members of their families. It was solemnized in India, with the husband providing a dowry to the wife in gold bullion valued at about $10,000.00, which she has retained. The husband has deposed that the value of this gold is now about $40,000.00. He also paid for the parties' wedding, which was expensive.
19. After the marriage, the husband returned to New Zealand. The wife was not able to accompany him as she did not hold the necessary visa to live permanently in New Zealand. A migration agent was retained by the husband to complete the necessary visa and the wife was able to migrate to New Zealand in 2007.
20. Between the marriage and her arrival in New Zealand, the husband has deposed that he provided regular financial support to the wife and her family in New Zealand. It is also his case that the wife sent regular sums of money to her family in India during the course of the marriage.
21. During the marriage, whilst the parties were living in New Zealand, the husband worked long hours, on a full-time basis, as a farm labourer. The wife worked 2 to 3 months each year packing fruit. The husband has asserted that whatever monies the wife earnt were repatriated to her family in India. The couple also travelled to India on a number of occasions to visit family.
22. In these circumstances, it is the husband's contention that he must be regarded as the couple's main financial provider. He concedes that the wife was the spouse who attended to the majority of household duties and did the cooking, although he deposes that he provided significant assistance.
23. It is the husband's case that due to monies being sent regularly to the wife's family in India, his aspiration to build a home on the City H land could not be achieved. He was, however, able to reduce the mortgage on the property for NZ$90,000.00 to around NZ$30,000.000. It is his evidence that during the period of the parties' cohabitation, due to financial constraints, he was in a position to pay only interest on the mortgage.
24. In 2015, Mr G discovered the Town D orchard and determined that it was a good prospect, which would suit the husband and his wife, as well as Mr B and his wife, given their respective backgrounds in agriculture. The husband and Mr B took up the opportunity and in 2015 the applicant migrated to Australia. Initially, the wife remained in New Zealand.
25. The purchase price of the Town D orchard was A$860,000.00. The two couples did not have a formal partnership agreement, but it was agreed that each couple would contribute A$130,000.00 with the balance to be borrowed from the ANZ Bank and secured by way of mortgage, taken out in the names of the four partners, on the orchard. Mr G agreed to guarantee the loan.
26. In order to finance his (and the wife's) purchase of the half share in the orchard, the husband sold his vacant land at City H recouping approximately NZ$100,000.00 of which $70,000.00 went toward purchasing his share of the orchard. The remaining NZ$30,000.00 was advanced to the wife to enable her to attend the wedding of her niece in India and provide members of wife's family with some money.
27. In order to complete the purchase of the orchard, the husband borrowed a further $30,000.00 from Mr G and another $30,000.00 from two friends. Accordingly in concrete financial terms, it is the husband's case that his contributions, as a wage earner in New Zealand, enabled the parties to acquire their 50% interest in the partnership and the wife personally made no direct financial contribution to the acquisition of this property, which apart from the gold bullion retained by the wife, was the only asset of the parties still extant as of 2015.
28. The wife came to Australia in December 2015 but stayed in the country for only a fortnight. She left to attend her niece's wedding. The husband believed she would return and the marriage between them was on-going. However, she did not contact him, and he became worried. He tried to communicate with her via his in-laws. In his affidavit, he deposed what happened next as follows:

After approximately four weeks, the wife's sister-in-law informed me that the wife had moved to England to be with a man she was to (and eventually did) marry. She told me that the marriage had been arranged by the wife's sister who resided in England and who knew the man. I don't know details of the man other than, as I was told by the wife's sister-in-law [Ms J], he was older than the wife and that he owned several properties in England and several in India, including a house property and farmland.

I have not spoken with the wife since. I believe that the wife's new marriage had been secretly arranged prior to the wife leaving me. The events were devastating and humiliating for me.

I consider the wife and I to have separated in January 2016 when she went to India, but I believe that the wife had made her decision well prior.[4]

1. As I have indicated, the husband has provided little evidence regarding his former wife's current living arrangements. He understands that Ms Mehta's subsequent marriage in England has broken down and she returned to live in New Zealand, where she has formed a new relationship.
2. In this context and that of the proceedings generally, the husband and those advising him are critical of the wife in that she has failed in her obligation to him to provide details of her current financial circumstances. She has not filed a statement of her financial circumstances nor completed informal discovery of documents.
3. The parties to proceedings, under the Act, involving property issues are subject to a duty to make full and frank disclosure. This process is mandated by Rule 6.06 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021.[5] It is facilitated by the requirement to file a statement of financial circumstances and the production of a stipulated number of financial records, such as tax returns and superannuation records.
4. However, the duty to provide full and frank disclosure does not arise solely under the court's rules but is also a fundamental principle of common law. This duty has been described as being "fundamental to the whole operation of the Family Law Act in financial cases...[6]
5. As will be detailed in due course, one of the obligations of the court, in making orders either altering or affecting the property or proprietorial rights of separated spouses is to ensure that any such orders are just and equitable in their terms. In this context, the court is required to consider the prospective needs of each of the parties concerned. In the current matter, the court simply has no evidence whatsoever regarding the wife's current financial situation.
6. The marriage between the parties was dissolved in mid-2017. At this point, it is the effect of the husband's evidence that he felt that he was in a worse position financially than he had been at the time of the commencement of the parties' marriage and he had been taken advantage of financially. Certainly, he asserts that the wife had been provided with significant sums of cash and bullion, which represented his liquid assets acquired in New Zealand, largely prior to the parties' marriage.
7. In these circumstances and given his limited understanding of the Australian legal system and general level of disadvantage in accessing it, being a modest income earner and a person who did not speak English as his first language, I can understand why the husband did not seek any formal orders regarding property with his former wife. From his perspective, they could achieve little to no advantage for him and the wife had retained property of significant value.
8. Rather, in the period approaching a decade since the wife left Australia, the husband has continued to work hard on the fruit farm earning a modest income and living frugally. He and the other partners seem to have serviced the mortgage secured against the orchard, although the major burden of running the orchard seems to have been on the husband.
9. At some stage, which has not been disclosed to me, Mr Adani and Ms Mehta went to live in the United Kingdom. As with the husband, it appears to be the case that Mr G ensures that their interests are protected. He holds their power of attorney.
10. Mr G has attended court with the husband and importantly has met his legal costs to date, which are significant. In Mr Jordan's submission his client's exposure to legal costs, with no obvious source to meet them, is another factor which militates in favour of the court finalising his application, along the lines proposed by him.
11. From his recurrent income the husband was able to repay his friends the money lent to him to enable the purchase of the Town D property, whilst Mr G because of the family ties, has been prepared to await repayment of his debt.
12. In 2018, the husband married his current wife, Ms K. She was a widow with a daughter, L, who was born in 2010. Ms K works as a fruit packer. In the last financial year, she earnt $54,678.00.[7] Her income supports the household.

1. Pursuant to the provisions of section 44(3) of the Family Law Act 1975[8] any application for the settlement of matrimonial property is required to be commenced within a period of 12 months after the granting of a divorce. However, the court has a discretion to extend the time if it would occasion hardship to a party concerned if leave to proceed was not granted.
2. In the current matter, the time to bring a property settlement application, in the absence of an extension, was around mid-2018. No such application was brought by either party. However, on 26 September 2022, the husband received a letter from solicitors acting for the wife, which enquired of him whether he was interested in purchasing his former wife's joint interest (held with him) in the orchard.
3. For obvious reasons, it is the case that the only individuals likely to be motivated to engage in such a purchase would be one of the remaining partners operating the fruit farm. The relevant solicitors - M Law Firm - proposed that a valuation be obtained and further indicated that if such a sale could not be agreed, the wife would apply to the District Court to partition the property pursuant to the provisions of the Law of Property Act 1936 (SA).
4. The husband responded through his current solicitors promptly. On his behalf it was indicated that proceedings in this court were likely to be more expediently directed to resolving the controversy in question. The solicitor - Mr Fowler - indicated that it was difficult for him to obtain instructions from the husband, due to language difficulties.
5. Mr Fowler further indicated that Mr Adani had been unaware of the provisions of section 44(3) of the Act and matrimonial property proceedings generally but had been of understanding that the parties had reached an informal agreement he would retain the farm, which at the time of separation was not represented by any significant level of equity.
6. Notwithstanding these reservations, Mr Fowler indicated that his client was open to having the orchard valued and thereafter engaging in a process of mediation, involving the parties' respective solicitors. The proposed mediation did not eventuate. It is the husband's evidence that his solicitor was unable to secure any response to his overtures from those advising the wife. Nothing of moment happened during much of 2023.
7. Eventually, on 1 November 2023, agreement was reached with the wife's solicitor for the relevant properties and the water licence associated with them to be valued by Mr N of O Company. The necessary inspection took place on 17 November 2023 with the resulting report being released on 22 January 2024.
8. Mr N's report contains some cautious views about fruit growing, in Australia, in general and the relevant properties in particular, noting the existence of a large glut of fruit in storage in Australia and the price per tonne of fruit produced by the Town D orchard had reduced since 2023. He thought it unlikely that the fruit would be picked for the 2024 year; whilst the price for less quality fruit would fall further.
9. In these circumstances, Mr N provided the following valuations:

1. In his report, Mr N reported that water licences are owned separate to the land and can be transferred or sold in isolation from it. Accordingly, the water rights relevant in the current matter were worth more than the agricultural land at the date of valuation. It is also apparent that the value of the orchard, since the date of its acquisition by the partnership in 2015 for $860,000.00 has almost tripled in value. It seems to me to be a reasonable inference that the chief factor in this increase is the increase in value of water rights.
2. Of the sum of $2.25m, the husband and wife are the legal owners of one half of this sum being $1.125m. At the time of the valuation, the orchard remained subject to the mortgage in favour of the ANZ Bank, which the husband has deposed stood at $388,833.00. Again, the parties' side of this liability was 50 %, which on my calculations results in them having a net equity in the orchard in an amount of $930,000.00, not taking into account the loan still owed to Mr G, which remains at $30,000.00.
3. At separation, again on my calculations, taking into account the mortgage loan and other debts, the parties' net equity in the orchard was approximately $130,000.00. In my view, it is incontrovertible that the very significant increase in the value of the parties' share in the partnership cannot be directly attributable to any efforts of the wife.
4. In my view, it must be as a result of market forces, particularly in regard to the value of water and the contributions of the husband in reducing debt and looking after the property through his care of the plants.
5. This is the main thrust of Mr Jordan's submissions made on his behalf. In effect, after the parties' separation, the husband continued doing what he had habitual done, namely he worked hard on the fruit farm and eked out a modest living with no assistance from the wife. In this context, Mr Jordan places significant emphasis on the fact that it was the husband's ownership of the vacant land in New Zealand, which enabled him (and through him the wife) to acquires it interest in the orchard in the first place.
6. The Full Court has recognised that, in some cases, a contribution of capital at the start of a relevant marriage may be of such significance that it merits receiving special recognition in how the court is subsequently called up to make its assessment of other possibly disparate and various contributions made by the spouses concerned during the entirety of their marriage.[9]
7. Again, how such contributions are to be assessed must be informed by what is both appropriate and just and equitable. In some cases, the initial contributions may be so disproportionate to other contributions as to merit special recognition.
8. In effect, Mr Jordan submits that this the case in the current matter. He assets that his client's financial contribution in the form of the vacant land in City H, which provided the essential capital to acquire the Town D orchard, which has so significantly appreciated in value over the past decade, axiomatically requires such special recognition, in the sense of it being so obviously and disproportionately superior to any contributions made by the wife, as either a homemaker or wage earner, in New Zealand, in the period 2007 to 2015, noting the parties did not cohabit in the initial years of their marriage.
9. The advent of the valuation by Mr N did not seem to have any great effect in advancing the matter. The wife was pushed to provide discovery but did not do so. Rather her solicitor indicated that she was currently facing difficulties in obtaining instructions due to her client's limited English and residency overseas.
10. This lack of progress coincided with the husband and his partners experiencing difficulty in meeting the mortgage payments to the ANZ Bank. These difficulties coincided with the general crisis in the industry, marked by oversupply and falling prices.
11. On 11 October 2024, solicitors acting for the ANZ wrote to the partners threatening foreclosure and seeking immediate payment of approximately $54,500.00. At this stage, the mortgage balance was approximately $389,000.00. From the husband and his partners' perspective, the only way out was a sale of some of the water licences, which they owned.
12. In these circumstances, given the fact that the wife was a joint proprietor of a half share in the land and associated water licences, the husband's only option to avoid a mortgagee's sale of the orchard, which had been his sole source of income (and indeed the mainstay of his life) was to approach the court for orders under the Act, which he did on 15 October 2024.
13. In his application, he sought final orders, which can be summarised as follows:
    • The wife transfer her interest in the Town D orchard to him;
    • She resign from the partnership;
    • He indemnify her in respect of all partnership debts;
    • Each party retain assets and liabilities standing in their respective names.
14. On an interim basis, he sought the following:
    • Leave to proceed;
    • The sale of the water licence relating to block ...;
    • The proceeds of sale to be utilised to discharge the mortgage with the balance to go to the partnership.

This application precipitated the only formal document filed on behalf of the wife, which is a notice of address for service filed on 5 November 2024.

1. The case was listed for its first mention on 20 November 2024. At this stage, the wife's solicitor appeared on her behalf and indicated to the court her client's consent to leave being granted to the husband to proceed out of time. An order to this effect was made and the other interim issues adjourned for interim hearing on 11 February 2025.
2. In the context of this hearing, the wife was directed to file answering documents and a statement of her financial affairs by 21 January 2025. In addition, a formal order was made for the disclosure of financial documents pursuant to rule 6.06 of the Rules. Neither of these orders has been complied with.
3. It seems to be the case that concerns were raised about the possible implications of the orders sought on Mr B and Ms C, given they had proprietary rights in the relevant water licence and were not parties to the proceedings. In addition, it was around this time that the ANZ Bank issued its demand in respect of the mortgage.
4. In these circumstances, the interim hearing was adjourned until 25 March 2025 and an order was made for the husband to file an amended response on or before 25 February 2025 with the wife to respond on or before 18 March 2025.
5. The husband filed an amended application on 24 February 2025 together with an affidavit in which he deposed to the partnership's deteriorating financial position and provided Mr N's valuation report. In his amended application, he sought a refined and extended order in respect of the water licence in the following terms:
   • 86 megalitres of irrigation rights be sold;
   • The proceed of sale be paid as follows:
     • To discharge the partnership mortgage;
     • $20,000.00 to Mr G;
     • Any balance to the partnership;
     • Payment of the costs of sale.
6. In his affidavit, the husband deposed that the partnership owned 186.3 megalitres of irrigation rights. He further deposed that the partnership had accrued debts of around $52,000.00 relating to harvesting expenses for the past year; pruning; water; and electricity. He anticipated expenses in excess of $115,000.00 for the coming year relating to harvesting and pruning; chemical and fertilizer; and post replacement.
7. Mr B and Ms C each filed an affidavit, sent from the United Kingdom and filed on 25 February 2025, in which they indicated their consent to and support of the sale of the water licence concerned. They did not seek to be joined as parties.
8. The wife did not avail herself of the opportunity to file answering documents. However, her solicitor consented to an order for the sale of 86 megalitres of water with the proceeds being used to discharge the ANZ mortgage with any balance, after the payment of the costs of sale, to be held in an interest-bearing account in the names of the partners.
9. Again, for a third time, the wife was directed to file her answering documents on or before 10 April 2025 and the matter was referred to a court-based conciliation conference which was convened for 14 April 2025.
10. The husband and Mr G came to Adelaide for the conciliation conference. Arrangements were apparently made for the wife to attend electronically. Her solicitor attended. However, the conference did not proceed because the wife could not be contacted. The case returned to court on 30 April 2025.
11. The wife's solicitor appeared but indicated that she was without instructions, and she was given leave to withdraw from the case. In these circumstances, an order for costs was made in the husband's favour in an amount of $4,900.00. The case was referred to me to ascertain its hearing status on 20 June 2025. Notice of the orders made was to be provided to the wife's last known electronic address.
12. On 30 April 2025, Judicial Registrar Schirripa authorised the payment of $20,000.00 to Mr G from the potential proceed of sale of water; with 50% of the remainder to go the partnership: and the balance to be held on trust by the husband's solicitors.
13. 86 megalitres of water was sold in June for $7,325.00 per megalitre recouping $629,950.00. Accordingly, in raw terms, the value of the orchard, based on Mr N's valuation is in the vicinity of $1,620,050.00 of which 50% is worth about $810,000. The mortgage on the property has been discharged.
14. On 20 June 2025, I made the following notations and subsequent orders:

A The Respondent failed to attend at the Conciliation Conference on 14 April 2025.

1. The Respondent's solicitors were granted leave to withdraw from acting on their client's behalf at the hearing on 30 April 2025.

2. The respondent has not filed a Notice of Address for service since.

3. The Applicant's solicitors are seeking this matter proceed to an undefended hearing.

THE COURT ORDERS THAT:

(1) Further consideration of this matter is adjourned to 6 August 2025 at 2.15pm for an undefended hearing to take place at Court with all parties to be present.

NOTICE TO THE RESPONDENT - An undefended hearing is a hearing where the Court considers the evidence and makes Orders (including Orders sought by the Applicant) in the Respondent's absence, or in the absence of the Respondent's evidence, based solely on the uncontested evidence of the Applicant.

(2) The Applicant is to file and serve any further Affidavit in support of the final orders sought, to be filed on or before 24 July 2025.

(3) The Applicant is to serve a copy of today's orders on the Respondent at her last known email address.

1. Affidavits of service have been filed in respect of the electronic service of the orders of 30 April 2025 and 20 June 2025. The wife has not filed any documents in the proceedings apart from an address for service. Implicit in the fact that her previous solicitor has indicated her consent to leave being given to proceed out of time to the husband and for the sale of the water licences is the fact that she is aware of these proceedings and their nature.
2. In addition, it is the husband's case that around about the time the parties separated and then divorced it was his understanding that the parties had reached an informal agreement that he would retain the wife's interest in the orchard. His then solicitor sent the necessary documents to the wife in February 2019, via her brother, but received no response.
3. At the present time the husband has deposed that he has no personal knowledge as to his former wife's address. He believes that she lives in New Zealand with a man he only knows as Mr P. In previous correspondence, the wife's former solicitor confirmed that she was living overseas. Correspondence provided to me indicates that the husband's solicitors have been assiduous in seeking the engagement of the wife, in these proceedings, through the request of information from her via her former solicitors.
4. From the perspective of the husband's solicitors, the best avenue to contact the wife and provide her with documents, is via her email address. The court is conferred with a broad discretion in respect of issues of service under its rules. Pursuant to Rule 2.33 the court has power to authorise how a document is to be served and find that it has been so served.
5. Rule 2.41 provides that a document sent by electronic means is taken to have been served the day after it was sent electronically. In a matter of the current kind, it would clearly be preferrable if there was a mechanism to ensure the physical provision of the order fixing the case for undefended hearing on the wife.
6. I accept that in the current matter that is not an objective easily achieved given the fact that the wife is out of the country; the husband has not engaged with her directly for nearly a decade; the two do not have children; the only address for service provided by the wife is that of her former solicitors in South Australia; and she personally has provided no other documents to the court.
7. Pursuant to Rule 2.34 the court has authority to dispense with the personal service of a document if reasonable steps have been taken to serve the person concerned by other means. In this context, the costs and practicality of personal service are relevant considerations.
8. In the current matter, I am satisfied that the wife is aware of these proceedings and is likely to have been provided with both the original application and the amended version via her previous solicitors. This can be the only logical explanation for her consenting to the out of time application and the water licence sale. In these circumstances, I am further satisfied that she has been served with notice of the undefended hearing, which is the subject of these reasons, by electronic means.
9. From the husband's perspective, he wishes to finalise the proceeding on the basis that he has day to day responsibility for running the orchard, which generates no profit but incurs significant costs to keep it running. In general terms, although it may not be an economically rational decision for him to stay on the land as a fruit grower, in emotional terms, this is the only life he has known and he only skills as an agricultural labourer.
10. In addition, it is the submission of Mr Jordan that his client has done everything to advance his application and has complied with all orders in respect of the filing of documents and appearing in court. In this context, he has incurred significant legal costs in the sum of $48,390.59, which he has funded from his savings and borrowed from Mr G.

1. The husband has no superannuation. It seems improbable that the costs order made in his favour, by the court, in the amount of $4,900.00 will ever be satisfied by the wife, given how she has approached the current proceedings.
2. It would appear, at the present time, due to the level of income produced by the orchard, that the husband is presently dependent upon his current wife, Ms K's modest income for his financial support. This income must also support L. Ms K owns a motor vehicle of modest value. The two have a joint bank account, which contains approximately $3,000.00.
3. The orchard's plant and equipment is old and needs replacing. The husband's estimates it worth to be $10,000.00. The vehicle used in connection with the farm, Motor Vehicle 1 has a red book value of $3,500.00. Mr Jordan has tabulated the value of the property available to the husband to be $917,358.00, which he contends his client should retain. This does not take into account the monies still owed to Mr G in the sum of $30,000.00.
4. Underpinning his case is the inference that it would be fundamentally unfair to the husband to compel the sale of the orchard in total or to deprive it of some more of its water rights, which would render it even more financially unviable because this would deprive him of sole means of livelihood and home.
5. Some monies remain from the sale of the water licences, which are held in the husband's solicitors trust account. It seems probable that these will go on his legal fees. I assume other monies have gone to pay partnership expenses related to the payment of contractors for harvesting and pruning. Of this sum only $20,000.00 remains.

1. It is a significant thing for proceedings to be determined in the absence of evidence from one of the parties concerned. The court has an obligation to ensure that the parties to proceedings before it have an opportunity to participate in those proceedings. However, there must be limits on such an obligation, which cannot be indefinitely prolonged.
2. Before a person can be adversely affected by a judicial order, they must be afforded an adequate opportunity to be heard.[10] I am satisfied that Ms Mehta has been given an adequate opportunity to appear in these proceedings and put her position before the court. She has not availed herself of that opportunity.
3. Mr Adani is entitled to have his application, for settlement of property determined within a reasonable period of time, pursuant to the applicable principles of law. As such, he does not need Ms Mehta's cooperation to have his application determined. Rather, there is an obligation, on Ms Mehta's part, if she wishes to be involved in the proceedings, for her to attend at court as required and pursue any application put by her or on her behalf with due diligence.
4. The Federal Circuit Court and Family Court is a court of private law. It determines disputes, between parties, according to law. In this case, according to the provisions of Part VIII of the Act, which relate to the division of property following the breakdown of a marriage relationship.
5. The court cannot compel a party to engage with litigation. It is however obliged to give each party the opportunity to put evidence before the court and, if he or she wishes to do so, contest any evidence relied upon by the opposing party.
6. However, a party, whether by intransigence, disinterest or manipulation cannot succeed in denying an applicant a just resolution, according to law, to his or her application, by choosing not to take part in proceedings because they do not proceed in the manner of his or her preference.
7. That would be fundamentally unfair to the opposing party and an affront to the proper administration of justice, which requires that a properly instituted application be finalised within a reasonable period of time relative to the complexity and issues raised in such an application.
8. Part 10.6 of the Rules deals with the court's authority to enter judgment against a respondent if that respondent defaults in complying with a court order or fails to prosecute any proceedings with due diligence.
9. Pursuant to rule 10.26 a party is in default if, among other things, he or she has failed to:
   • comply with an order of the court in the proceedings; or
   • produce a document as required; or
   • do any act required to be done by these Rules; or
   • prosecute the proceedings with due diligence.
10. I am satisfied that Ms Mehta has failed to comply with numerous orders of the court requiring her to file documents in the case. Essentially, she has failed to put any formal case before the court or to articulate a position in these proceedings, having been given notice of them. Although she has appeared, through her solicitor, from time to time, her involvement has been characterised by a lack of diligence.
11. In these circumstances, pursuant to the provisions of rule 10.27(2) Mr Adani is entitled to seek that the court enter judgment in his favour, on whatever terms the court considers just, on an undefended basis.

1. Part VIII of the Act deals with financial matters relating to parties who are or have been married to one another. In particular, section 79(1) authorises the court to alter the property interests of the parties to a marriage. In addition, Part VIIIB provides specific provisions enabling the splitting of superannuation between spouses.
2. Section 79(2) directs that the court is not to make any order for property settlement unless satisfied in all the circumstances such an order is just and equitable.
3. The mechanic of the process to be followed for the division of the parties' property is well-established by law[11] and set out in sections 79(4) and 75(2) of the Act_,_ which prescribe a number of specific steps, which can be summarised as follow:
   1. In the first step, I must ascertain what are the parties' assets and liabilities available to be divided between them. The general rule is that those assets are to be determined as at the date of trial.[12] The husband has provided evidence in this regard, largely in the form of the valuation by Mr N of the orchard.
4. In the second step, I must ascertain the contributions, which each party has made towards the matrimonial pool of assets, as I find them following the first step. Contributions fall into two broad categories.
5. The first kind is contributions to the property: financial contributions and non-financial contributions, made directly or indirectly, by or on behalf of a party to the marriage to the acquisition, conservation, or improvement of any of the property.
6. The second kind is contributions to the welfare of the family in the words of the section:

The contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.[13]

1. It is clear from the authorities that this second kind of contribution must be given appropriate weight and is not to be treated as a token matter or as a contribution which is inherently less valuable or important than a financial contribution to property.
2. The third step involves the assessment of the parties' prospective needs, by reference to the factors set out in section 75(2) of the Act_._ Pursuant to section 75(2)(o), the Court is entitled to take into account any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
3. In Stanford, the High Court warned of the potential danger of a court conflating its responsibilities arising under sections 79(2) and 79(4). The court's fundamental responsibility is to make a just and equitable order. The High Court said as follows:

The expression 'just and equitable' is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.[14]

1. Accordingly, considerations of what is just and equitable flavour all applications pertaining to property settlement. What is fair is impossible to define with certitude and must depend on the prevailing circumstances. However, care must be taken to avoid conflating the stipulation contained in section 79(2) with the discretionary exercise contained in section 79(4). It is convenient to describe this as the fourth step.
2. The available evidence indicates that the parties lived together, in the one domicile, for a period of around eight years in New Zealand between 2008 and 2015. The husband was engaged in paid employment during this period, whilst the wife had seasonal work. The husband concedes that she was the spouse who did the majority of the housework and cooking.
3. The difficult task for the court is how this contribution is to be assessed against the husband's other significant contributions, both in direct dollar terms - bringing in the capital which resulted in the acquisition of the orchard and indirectly in maintaining it in the decade or so after the parties had separated. Necessarily, these are very different contributions, which have been provided over different time periods, within the context of an idiosyncratic marital relationship.
4. In Dickons v Dickons[15] the Full Court said as follows:

There can be little doubt that the classification of contributions by reference to terms such as initial contributions, contributions during the relationship, and post-separation contributions, can be helpful as a convenient means of giving coherent expression to the evidence in a section 79 case and to giving coherence to the nature, form and extent of the parties' respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of section 79 itself and, in particular, section 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.

1. In summary, contributions, within the framework of a marriage, which are different in quality and nature must be compared, in order to achieve a just and equitable division of property. It has been referred to as a holistic exercise.[16] Certainly, it is not to be approached as a simple accounting or arithmetical exercise.
2. Percentages are helpful in the majority of cases but, in my view, they should not be engaged at the cost of doing what is just and equitable. The risk implicit in their automatic adoption being the assumption that there can never be a case, which justice dictates should result in one party retaining the entire asset pool.
3. In particular, the Full Court emphasised that:

The necessarily imprecise wide discretion inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided. [17]

1. In Horrigan & Horrigan[18] the Full Court indicated as follows:

It is well established that an assessment of contributions is not a mathematical exercise, but rather involves the identification and assessment of all of the parties' respective contributions, in a holistic way across the course of the relationship and in the post separation period to the point of assessment.

1. The consistent theme from the authorities is that the multifarious contributions throughout a marriage and subsequently, of all types, are to be assessed in a holistic way. However, whilst it is all well and good to use expressions such a holistic, which is a shorthand way of emphasising the frequent interconnectedness of marital contributions, which can only be understood by reference to the totality of the marriage, it must also be stressed above all that however contributions are assessed, the overall outcome must be a just and equitable one.
2. In my view, this is the nub of the husband's case, which is essentially taking into account his initial contribution of capital, which requires special recognition by the court, along with post separation contributions, it is just and equitable for him to retain the orchard, which is his home and sole source of modest financial support (noting the current dire financials of the partnership) given his current personal circumstances - a 63 year old, unskilled, agricultural labourer, with limited fluency in English.

1. I accept Mr Jordan's tabulation of the relevant pool in the following manner:

1. The major failing of this table is it provides no information regarding the wife's level of asset backing. One of the underpinnings of Mr Jordan's submissions is that the wife took gold bullion at separation which he now values at $40,000.00, which is about 5% of the pool. He assesses the case therefore as being a 95/5% case.
2. It is uncertain whether the wife does indeed retain the gold or has disposed of it and, if so, at what value. In my view, with due respect, this is also a somewhat artificial way in which to approach the unusual and idiosyncratic circumstances of this case.
3. As noted above, there must always be cases the circumstances of which dictate that it is just and equitable that one party retains the entirety of the asset pool as calculated by the court. Such cases will be necessarily rare. The court should not ignore the reality of such cases by arbitrarily attempting to achieve some notional or artificial percentage split. This seems to me to be contrary to notions of justice and equity.

1. In my view, the assessment of contributions in this case, favour the husband to a significant and indeed overwhelming degree. Without his contribution of the proceeds of sale of his land in New Zealand and his borrowings there would be no orchard partnership.
2. In the decade or so since separation, the husband has maintained and conserved that property, which has increased markedly in value in the period, largely it would seem in respect in the increase in value of that most precious of commodities - water. This cannot be attributed in any way to the wife.
3. Whatever contributions the wife made to the property pool occurred in New Zealand. Whatever were her reasons, she dramatically demonstrated to the husband her disinclination to be involved in the Town D property, within days of arriving there. Yet it is the property which remains the corpus of the relevant matrimonial estate.
4. As indicated above, relevant legal authorities caution the court from attempting to compartmentalise contributions provided during a marriage, particularly a long one. These are issues which the Full Court considered in Fields & Smith.[19] Firstly:

...there is no requirement to attribute different percentages to different periods in the relationship.

...the task is to consider the contributions holistically over the whole period from the commencement of cohabitation to trial and the analysis requires the court to weigh all of the contributions of all types prescribed by section 79(4) made by both parties across the entirety of the relationship until the time of hearing, including the post-separation period.

Step Three - The prospective needs of the parties

1. I am now required to consider the various matters set out in section 75(2) and in particular to consider whether any further adjustment should be made in favour of either party. The section 75(2) factors are mainly, but not only, prospective in nature.
2. Again, apart from her age, I know nothing of the wife's circumstances. I do know the husband faces a challenging financial future, without any superannuation and with skills in an industry in crisis, which are not easily transferable given his background, age and lack of English fluency.
3. At best, the orchard will provide him with a modest income. He is likely to work as long as he can but with no guarantee of economic security. Overall, on the basis of the available evidence, these factors favour the husband.
4. Ms K is also an unskilled worker. Her modest income supported the family. Whether Mr G will pursue his loan is uncertain. Legal fees are likely to consume whatever is left to the husband from the sale of the water licences. The wife's irregular engagement with these proceedings has driven up his costs. These are also factors which favour the husband.

1. I am satisfied that in all the circumstances of this case, it is just and equitable to make orders pursuant to section 79(2) of the Act. The marriage between the parties ended with divorce in mid-2017. Since their separation in late 2015, they have led entirely independent lives. Accordingly, what remains of their financial relationship with one another is notional in the extreme and must be ended.
2. On paper, the wife is part of a partnership in which she has never actively participated and to which she has made neither direct nor indirect contributions. The partnership has produced a modest income for the husband but only because of his ceaseless toil. It now produces a loss and any increase in its value is due to market forces which have nothing to do with either the husband or the wife.
3. In my view, this is one of the rare cases whose unusual circumstances justify one party retaining all the assets identifiable by the court. The court's inability to have access to a more defined asset pool and a more comprehensive understanding of the wife's financial circumstances is attributable solely to her unwillingness to engage proactively in the proceedings and to file any formal documents, notwithstanding the fact that she has been given ample opportunity to do so.
4. The only means by which some capital can be freed up to make a nominal payment to the wife is through the sale of some aspect of the partnership - either one of the blocks or the water allocated to it. What would be the implications of this for the viability of the partnership, already marginal, is not clear. However, axiomatically, it cannot be positive.
5. Whether the fortunes of the fruit industry will turn around is also not clear to me and was not an issue explored in these proceedings. However, at 62 years of age and with no skills to allow him to subside the farm by outside work, the husband does not have a lot of time to wait it out.
6. Rather, he is stuck doing what he is doing - eking out a basic financial existence by the only means available to him. In my view, these factors render the potential sale of a part of the orchard fundamentally unfair to him, given the wife's lack of engagement with both it and the proceedings generally. Essentially, I have reached the conclusion that the only fair outcome in the case is that the husband should retain his interest in the orchard, which was acquired through his initial contribution of capital and maintained by him alone in the period since.
7. The husband has sought costs. In the idiosyncratic circumstances of this matter and the lack of any actual payment to the wife, it would be neither proper nor just for such an order to be made. However, I am cognisant of the very significant costs incurred by the husband, which in my assessment, have been increased by the inconsistent manner in which the wife has approached the litigation.
8. The husband's exposure to costs is likely to mean that any of the remaining proceeds of the sale of the water licences, after payment of partnership liabilities, will go to fund his costs. This state of affairs fortifies my view that it would not be just and equitable, in the unusual circumstances of this case, for the court to make an order directing the sale of any other asset of the partnership.
9. For all these reasons, I have reached the conclusion that it would be just and equitable for the court to make orders in the form proposed by the husband, which I acknowledge have the effect of him retaining all the identifiable assets of the marriage. I will direct that a copy of the orders and these reasons for judgment be provided to the wife via the only mechanism available to the husband, which is her email address.
10. For these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and fifty-five (155) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown.

[1] See husband's affidavit filed 24 July 2025 at Annexures E & F.

[5] Hereinafter referred to as "the Rules".

[6] Per Smither J in Briese & Briese [1985] FamCA 23; (1986) FLC 91-713 at 75,181 cited with approval by the Full Court in Black & Kellner [1992] FamCA 2; (1992) FLC 92-287 at 79,133.

[8] Hereinafter referred to as "the Act".

[9] See Pierce v Pierce (1999) FamCA 74 at [28] (Ellis, Baker and O'Ryan JJ).

[10] See Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1, 20 (Murphy J).

[11] See Ferraro v Ferraro [1992] FamCA 64; (1992) 16 Fam LR 1; Clauson v Clauson [1995] FamCA 10; (1995) 18 Fam LR 693; Hickey & Hickey [2003] FamCA 395; (2003) 30 Fam LR 355.

[12] See Biltoft & Biltoft [1995] FamCAFC 45; (1995) 19 Fam LR 82.

[13] See Family Law Act 1975 (Cth) s 79(4)(c).

[14] See Stanford v Stanford (2012) 247 CLR 108 120 [36] (French CJ, Hayne, Kiefel and Bell JJ).

[15] Dickons v Dickons (2012) 50 Fam LR 244 at [24].

[16] See Watson & Ling [2013] FamCA 57 at [13] (Murphy J).

[18] See Horrigan & Horrigan [2020] FamCAFC 25 at [35].

[19] Fields & Smith [2015] FamCAFC 57; (2015) FLC 93-638 at 80,133 [75] & 80,153 [168].