Bhagat & Sandhu (No 4) [2025] FedCFamC1F 229 | Case summary

Bhagat & Sandhu (No 4) [2025] FedCFamC1F 229 | Case summary | Zoe

[28]

(a) The husband shall pay the wife $313,478;

(b) The Wife shall transfer to the Husband, all of her right, title and interest in the real property known as and situated at JJ Street, Suburb KK in the State of New South Wales ("the JJ Street property") (Folio: ...) and the Husband is to do all acts and things necessary to discharge the mortgage secured over that property and refinance the property into his name;

(c) The Husband is to do all acts and things necessary to discharge the mortgage secured over real property known as and situated at LL Street, Suburb KK in the State of New South Wales ("the LL Street property") (Folio: ...) and refinance the property into his name.

(d) In the event that the husband fails to comply with order 2 then the JJ Street property is to be sold on the following terms:

(i) A solicitor is to be appointed by agreement to act on the sale and failing agreement by the Husband proposing two and the Wife selecting one;

(ii) The parties shall co-operate with all reasonable requests by the real estate agent in relation to the sale including to facilitate inspections by prospective purchasers;

(iii) Pending the sale of the property the husband shall maintain the property inclusive of all mortgage and rate repayments.

(iv) In the event that the property is not sold by public auction within a period of six (6) months from the date of these Orders, the parties are to do all acts and things and sign all documents necessary to forthwith re-list the property for sale by public auction to occur every two (2) months, on the same terms as set out herein save that, unless otherwise agreed, the sale or reserve price shall be reduced by 5 per cent at each auction until the property is sold.

(v) On completion of the sale the proceeds of sale shall be applied in the following order of priority:

In discharge of any mortgage(s) and loans secured over the property (as may be applicable).

In payment of any outstanding council rates, water rates or land tax due in respect of the property.

In payment of any real estate agent's commission, marketing expenses, auctioneer's fees.

In payment of any solicitor's costs and disbursements for acting on the sale.

Such amount as is necessary to satisfy Order 2(a)

Balance if any to the husband.

[33]

The parties shall, within fourteen (14) days, do all acts and things necessary, including executing and No Objection Certificate and any other such documents necessary within seven (7) days of receiving those documents, to transfer to the Husband all of the Wife's right, title and interest to a Safety Deposit Locker located at VV Bank in Country D ("Safety Deposit Locker"), and the contents therein, to the Husband and, the Wife is restrained as from the date of these Orders to accessing or causing or authorising any third party to access the locker and remove the contents therein.
Following compliance with Order 11 above, the Husband shall be declared pursuant to section 78 of the Act as the sole owner in equity and at law, to the exclusion of the Wife, to the Safety Deposit Locker.
The parties shall, within fourteen (14) days, do all acts and things necessary, including executing any documents necessary within seven (7) days of receiving those documents, to transfer to the Wife all of the Husband's right, title and interest to the WW Bank Country D Account (acc no...) ("WW Bank Account"), to the Wife and, the Wife is thereafter declared pursuant to section 78 of the Act as the sole owner in equity and at law, to the exclusion of the Husband, to the balance of that account.
The parties shall, within fourteen (14) days, do all acts and things necessary, including executing any documents necessary to transfer to the wife the balance of the Westpac offset account ending ...96 and the Wife is thereafter declared pursuant to section 78 of the Act as the sole owner in equity and at law, to the exclusion of the Husband, to the balance of that account.
Subject to these orders, and except to the extent required to enforce these orders, the Husband, hereby releases the Wife to the fullest extent permitted by law from any debts, liabilities, demands or claims whatsoever which the Husband has or would have had against the Wife but for these orders and this release.
Subject to these orders, and except to the extent required to enforce these orders, the Wife, hereby releases the Husband to the fullest extent permitted by law from any debts, liabilities, demands or claims whatsoever which the Wife has or would have had against the Husband but for these orders and this release.
Subject to these orders, the Husband is to indemnify the Wife, and keep the Wife so indemnified, in respect of any debts, liabilities, demands or claims whatsoever arising from or connected with any liabilities retained by the Husband pursuant to these orders.
Subject to these orders, the Wife is to indemnify the Husband, and keep the Husband so indemnified, in respect of any debts, liabilities, demands or claims whatsoever arising from or connected with any liabilities retained by the Wife pursuant to these orders.
Except as otherwise provided in these orders, the parties are each declared the sole owners in equity and at law, to the exclusion of each other, to all items of property and financial resources, including furniture, jewelry, household items, choses-in-action, motor vehicles, money in bank accounts and superannuation entitlements held in their respective names, possession or control as at the date of these orders.
Except as otherwise provided in these orders, the parties are each to remain solely liable to the exclusion of each other to any debt or liability held in their respective names as at the date of these orders.
In the event that either party refuses to do any act or thing or sign any document necessary to give effect to these orders, a Registrar or Judge of the Federal Circuit and Family Court of Australia at Sydney is appointed pursuant to sections 106A of the Act to do any such act or thing or execute any such document at the cost of the defaulting party.
In the event that any party seeks an order for costs they are to submit to my Associate within 28 days a Minute of Order setting out the order sought and an Affidavit setting out the basis for such an order. That matter will thereafter be listed to hear argument as to costs.

[38]

These are proceedings for financial adjustment pursuant to Part VIII of the Family Law Act 1975 (Cth) ("the Act") following the breakdown of the parties' 14-year marriage.
The parties were agreed as to the value of their assets but disputed the inclusion of various addbacks. The parties were agreed as to how their assets should be divided in specie save and except in relation to a jointly owned property in Region NN ("the Region NN property"). In that respect, their agreement was reduced to a Minute of Order (Exhibit 27).
It is difficult to see why the parties are at issue, given that the property has modest equity and is infected with a capital gains tax liability. That said, the husband contended he should retain the Region NN property given that the wife will retain the former matrimonial home. The wife submitted that she should retain the Region NN property noting that the husband will retain two other properties in Sydney, both of which are located in Suburb KK, one of which is in the parties' joint names and one of which is in the husband's sole name.
I am not satisfied that either parties reason as to why they should, to the exclusion of the other, retain the Region NN property is terribly compelling. I propose for other reasons as set out below to order its transfer to the wife.
The parties each have a liability for tax in Country D and it was agreed that it be removed from the pool of assets and that each contribute equally to the debt.
The parties were otherwise at issue as to the contribution assessment, s 75(2) adjustment and just and equitable outcome. In that respect, the husband submitted that the parties' assets should be divided as to 53 per cent on a contribution basis in his favour with no adjustment under s 75(2) whereas the wife submitted that the parties' assets should be divided as to 55 per cent to her on a contribution basis with a further 15 per cent adjustment to her under s 75(2) such that their assets be divided as to 70 per cent in her favour.
For the reasons that are set out below, I am not satisfied that either party's proposal represents a just and equitable division of the parties' assets.

[39]

The husband was born in 1975 and is 49 years of age. The wife was born in 1980 and is 44 years of age.
The parties were married in 2005 in Country D and separated on a final basis on 3 February 2020 when the wife left the former matrimonial home. The husband addressed an earlier date of separation in his affidavit as follows:
1. We separated informally in or about early 2019 however remained living together until 3 February 2020, when [Ms Sandhu] left the former matrimonial home with both our children. I consider 3 February 2020 to be the date of our final separation. Between early 2019 and 3 February 2020, we continued to intermingle our finances, continued to jointly contribute to expenses and continued to socialise, organise events at our home, and attend cultural events together. The only reason I say we informally separated is because [Ms Sandhu] sent me an email titled Separation Notice in early 2019.
The issue was not otherwise addressed in cross-examination, and it is unnecessary to resolve.
In 2007, the parties relocated from Country D to the United Kingdom. The parties then relocated to Australia in or about 2010.
The wife contends that neither the husband nor herself had any assets of significance at the commencement of the marriage, while the husband deposes that he provided a greater initial financial contribution of approximately $53,000.
The husband was employed full time throughout the marriage until about 2015, when he set up a business as a sole trader. He was self-employed for the last few years of the marriage through this business. The wife was employed full time throughout the marriage with the exclusion of periods around the birth of the children. The parties agree in their evidence that the husband earned more than the wife.
The parties' daughter, X, was born in 2008 and is 17 years of age, while the parties' son, Y, was born in 2012 and is 13 years of age. Another child of the relationship, W, was born in 2006 and passed away when she was an infant from a medical condition.
The parties bought and sold a number of properties over the course the relationship. Six properties were purchased in Country D and four were purchased in Australia.
In 2013, the parties acquired M Street, Suburb N (the "Suburb N property") for $575,000 in joint names funded by way of savings and a mortgage. In 2014, the parties acquired LL Street, Suburb KK (the "LL Street property") for $510,000 in the husband's sole name. In 2015, the parties acquired JJ Street, Suburb KK ("JJ Street property") for $630,000 in their joint names and in 2018, the parties acquired GG Street, Suburb HH, Region NN (the "Region NN property") for $818,000 in joint names. Each purchased was funded from modest savings and a substantial mortgage.
The wife contends that she was a victim of family violence perpetrated by the husband during the course of the marriage that made her contributions both during the marriage and post-separation significantly more arduous. She details a history of family violence within the relationship. The husband denies perpetrating family violence. He says:
1. I deny that there was any conduct perpetrated by me during our marriage, which made [Ms Sandhu's] parenting contributions, or financial contributions more difficult.

[40]

...

I do not currently know what family violence [Ms Sandhu] says she was subjected to, to the extent that she says she should receive a larger percentage of our property pool as [Ms Sandhu] says in her submissions that she will specify what this is at a later stage. I can only assume, that despite what happened in our parenting proceedings, and having had the benefit of reading His Honours Judgment, and particularly paragraphs 33, 66, 69, 80, 81, 82 and 118, [Ms Sandhu] maintains these serious allegations.

...

On that basis, I want to make it clear that I have never at any stage sexually assaulted [Ms Sandhu] or forced her to have sex with me. I have never held her down on a bed, or threatened to hit her so that she would have sex with me. I have never threatened [Ms Sandhu] at all or behaved in a way which was intimidating or controlling. I have never had sex with or penetrated [Ms Sandhu] in such a way to cause her to bleed, nor have I observed her crying after sex. I have never hit, slapped or punched [Ms Sandhu] or in any other way physically assaulted [Ms Sandhu]. I have never abused her or made [...] discriminative comments. I have not controlled what she wore, where she worked, who she socialized with or what she did with her free time. I deny being financially controlling and maintain that [Ms Sandhu] had full access to and control over any joint accounts, including offset accounts and mortgage accounts throughout our marriage. I have never threatened to destroy, or destroyed any of our property, and I would never do so and in particular not to defeat her claim in the family law proceedings.

...

I accept that a Final ADVO was made [in] 2015 against me, protecting [Ms Sandhu], following my mother and [Ms Sandhu] having an altercation which I stepped into to stop it. I have given evidence about this already. I maintain that I did not assault [Ms Sandhu] and that I consented to the ADVO on a without admissions basis as I did not want to make [Ms Sandhu] go through the process of giving evidence in Court, or my mother, and simply wanted to forget the whole incident, so our family could move on.

[67]

The parties agreed that the wife would retain the Suburb N property and the two jointly held properties in Country D while the husband would retain the JJ Street and LL Street properties and his properties in Country D (Exhibit 27).
As is apparent from the above and as addressed in submissions, the parties are apart as to the inclusion or treatment of Items 20, 36, 37, 42 and 43. Each party contended for various addbacks and in the case of the wife inclusion at Item 20 of the proceeds of sale of a property in Country D sold in 2014.
The authorities on the question of addbacks make clear that whether something is added back is ultimately a matter of discretion. In Omacini and Omacini [2005] FamCAFC 104; (2005) FLC 93-218 ("Omacini"), the Full Court identified three classes of addbacks of property that "no longer exists" at [30]. Those classes were money expended on legal fees, a premature distribution of assets by one party (Townsend and Townsend [1994] FamCA 144; (1995) FLC 92-569) and circumstances involving waste as outlined by Baker J in Kowaliw and Kowaliw [1981] FamCA 70; (1981) FLC 91-092.
In Trevi & Trevi [2018] FamCAFC 173; (2018) FLC 93-858, the Full Court observed referred to their decision in Omacini that addbacks fall into "three clear categories" as follows.
1. However, the Full Court also made it clear that an addback does not necessarily occur whenever "a party has expended money realised from the disposition of assets that existed as at the date of separation", the Full Court describing such a proposition as "unduly simplistic". An earlier Full Court made the same point, saying that adding back is "the exception rather than the rule".
2. The fundamental precept that addbacks are exceptional, reflected in the decisions just referred to, also mirrors what has been said in earlier decisions of the Full Court that, for example, "the Family Court must take the property of a party to the marriage as it finds it" at trial. An important parallel proposition is that the parties do not "go into a state of suspended economic animation" after separation. Thus, reasonably incurred expenditure does not usually come within accepted categories of addback.
3. Two fundamental premises emerge from Omacini and the authorities preceding it. First, "adding back" is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not "exceptional" justice and equity can be achieved, not by adding back, but by the exercise of a different discretion - usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is "a course which is, perhaps, technically more correct" than adding back to the list of existing interests in property.

[68]

While in relation to paid legal fees, the Full Court in Chorn and Hopkins [2004] FamCA 633; (2004) FLC 93-204 observed as follows:
1. In summary, we consider that the above mentioned decisions of the Full Court establish that, while the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial Judge, in determining how to exercise that discretion, regard should be had to the source of the funds.
2. If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them.
3. If funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties. Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions.
Notwithstanding a requirement of exceptionality and that the more appropriate course is to have regard to such matters under s 75(2) of the Act the parties sought for the inclusion of addbacks.
In respect of Item 20, the wife contends that the husband has failed to give an adequate explanation as to what happened to the proceeds of sale of a property in Country D sold more than 10 years ago. Whilst the wife seeks to include it in the Asset column, if it is to be included at all, it should be included as an addback or dealt with pursuant to s 75(2) of the Act. The husband gave evidence that he had sold the property for approximately AUD$108,000, that the funds were deposited into a bank account, the equivalent of $66,000 was transferred to Australia by way of an A2 Form to assist in purchasing the JJ Street property, and the balance of the proceeds were used to pay for various fees, taxes and furnishing of the properties in Country D (husband's affidavit filed 28 November 2025, paragraph 25(a)). The A2 form was annexed to his affidavit and became Exhibit 13.
The wife's cross-examination of the husband on this issue amounted at its highest to a bare challenge that the husband still retained the proceeds of sale which he denied. Beyond such a proposition, the issue was not explored nor was the detail of his evidence analysed or subjected to cross-examination. I am not satisfied that the wife has established that his affidavit evidence supported by a document should not be accepted. I do not propose to include an amount at Item 20 being the net proceeds of sale of the property in Country D.
The parties were at issue in relation to the inclusion of Items 36, 37 and 42. It was common ground that upon separation the wife had withdrawn from the joint accounts of the parties' $270,000. The parties agreed that they would include by way of addback the entirety of the funds withdrawn by the wife which is represented by the amounts at Items 25 and 33 as well as some monies remitted to Australia by the wife and used to fund her legal fees. The husband did not concede that an addback should be made against him other than in relation to his paid legal fees.
It was submitted by the wife's counsel that where the entirety of the funds withdrawn by the wife post-separation have been added back then the same should apply in relation to funds drawn by the husband. In that respect, the wife submitted that the amount of $291,068 at Item 36 represented the withdrawal of funds by the husband referred to at paragraph 93 of his affidavit totalling $105,636, $165,000 withdrawn by the husband referred to at paragraph 94 of his affidavit, a payment by the husband from the joint account of his credit card of $6,396, and a payment of various business expenses again from the joint account totalling $12,690. Consistent with the wife's approach, she does not seek to include as an addback Item 42 being what the husband asserts to be his paid legal fees. The total of these amounts is $289,722 not $291,068. Whilst there is a difference in the amounts it matters little for the reasons expanded on below.
I do not propose to accede to the wife's submission in relation to an addback against the husband of the magnitude submitted. Beyond advancing a reason based upon an acceptance of the treatment of the wife's addback and that the same should apply to the husband, no principled reason was otherwise advanced. If the parties agree on an addback, then the Court may ordinarily adopt same. Here, however, there is no agreement. There needs to be a principled reason consistent with authority to addback an amount of money that no longer exists. Consistent with the above authorities, I propose to add back those amounts utilised by the husband by way of legal fees. To do so is consistent with authority and accords with the husband's evidence as to how the various monies were expended by him as identified in paragraph 92(a), 94 and 98 of his affidavit. Those paragraphs indicate that from the monies taken from the joint account the husband applied, consistent with paragraph 92(a) $13,673 to legal fees, applied in accordance with paragraph 94, $68,117.13 on legal fees paid from a lump sum he drew from various accounts and, consistent with paragraph 98, $60,000 on legal fees from monies sourced from Country D. The husband's counsel agreed these sums had been expended on legal fees. I am not satisfied, given the paucity of cross examination that it is appropriate to have regard to the difference between the amount added back and the sum claimed at the third stage in circumstances where the husband gave an explanation as to how the balance was expended, in part on the parties' properties.
Accordingly, I propose to include $141,790.13 as the payment from these funds by way of legal fees as an addback against the husband. Consistent with this approach, I do not propose to add back the amount at Item 42 being the husband's paid legal fees as to do so would double count the expenditure.
Otherwise, in relation to the amount drawn by the husband from his superannuation of $10,000, I do not propose to add this back. The husband's evidence was unchallenged as to withdrawal of this sum during Covid-19 to meet his expenses and I am not satisfied that it is appropriate to add the amount back.
As a consequence of these findings, and the agreement between the parties as to the in specie division of property, I find the pool of assets for division to be as follows:

[91]

The assessment of contributions in a property case calls for the exercise of discretion, and a holistic value judgment of the respective contributions of the parties. The Court is required to consider all of the contributions of the parties, as the Full Court in Dickons v Dickons (2012) 50 Fam LR 244 makes plain:
1. ... 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 s 79 itself and, in particular, s 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.
2. Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without "giving overzealous attention to the ascertainment of the parties' contributions" (Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 524 ; [1986] HCA 17; 65 ALR 12 at 18 ; [1986] HCA 17; 10 Fam LR 819 at 825 ; [1986] HCA 17) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
3. 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.
The Full Court in Horrigan & Horrigan [2020] FamCAFC 25 emphasised and reinforced that the proper approach to the assessment of contributions is:
1. ... 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. ...
I am also mindful of what the Full Court said in Singerson & Joans [2014] FamCAFC 238 at [66], namely that for the purposes of s 79 of the Act, there is nothing to suggest that any category of contribution needs to be quarantined and applied solely to particular assets. In my view, the authorities require evaluation of all contributions to the property of the parties. This view has been confirmed by subsequent Full Courts such as in Jabour & Jabour [2019] FamCAFC 78; (2019) FLC 93-898, where their Honours observed that a primary judge should be cautious in emphasising the importance of an increase in value of a particular item of property at the expense of "the myriad of other contributions that each of the parties has made during the course of the relationship" (at [35]).
The consistent theme from the authorities is that the multifarious contributions throughout the relationship and subsequently, of all types, are to be assessed in a holistic way. Guided by such Full Court determinations, I propose to assess the parties' contributions.
The parties' affidavits were replete with allegations, many of which were not pursued in cross-examination, nor found their way to submissions. I have read all of the evidence relied upon in the proceedings, including the Exhibits, but do not propose to repeat all of it in these reasons. As the High Court reminds in Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447:
1. ... A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
I find that at the commencement of cohabitation the husband had savings of approximately $53,000 while the wife's assets had minimal value.
I find that the husbands income exceeded that of the wife during the course of the relationship. I also find, consistent with the husband's evidence at paragraph 19 of his affidavit, that during the course of the relationship the parties jointly utilised their income for the benefit of the family and that the entirety of both parties' income was so applied.
I accept the submission of the husband's counsel that the wife was the primary homemaker and parent during the relationship.
The husband's counsel submitted that the Court should have regard to the contributions made by his client's parents. The wife in her cross-examination conceded that the husband's parents were present in the parties' various homes more often than was her mother and gave an explanation that this was so for cultural reasons. She was not challenged on this explanation.
The fact that the parties asserted it was a relevant consideration does not make it so by reason of simply saying it. To be a relevant consideration it must fall within one of the identified categories of s 79(4) and be supported by some evidence. The husband's evidence on this issue was as follows:
1. Throughout our marriage, both my mother and father or [Ms Sandhu's] mother would reside with us for extended periods of time throughout the year, on average between 3 and 9 months of the year. I recall my mother would normally stay for 8-9 months at a time, and [Ms Sandhu's] mother, when she came, usually stayed for approximately 3 months or the remainder of year. This is a normal part of our culture and, they both provided significant care to our children, cooked and cleaned, during the times they lived with us.
2. Primarily however, it was my parents who resided with us. From the time [X] was born in 2008 until our separation in 2020, I estimate one or both of my parents resided with us for approximately ten (10) years. In relation to [Ms Sandhu's] mother lived with us for a total of 12-18 months and her maternal Uncle lived with us for approximately 3 months at one stage.
3. We returned to [Country D] in or about March 2009 for approximately one year, living in [City AF]. We did not reside nearby either of our parents whilst we were in [City AF] but we still received assistance from my parents when they came to visit.
4. We relocated to Australia in [...] 2010, where we have continued to reside for the past fourteen years. Neither [Ms Sandhu] nor I have any significant family here in Australia, aside from when our parents have visited us over the years and, my nephew who lives here and her niece who lives here and who I understand [Ms Sandhu] financially supports.
5. [Ms Sandhu] and I initially arrived on our own, and began living in [...] in rental accommodation, together with my brother [...] who resided here for approximately one (1) year. Both [Ms Sandhu] and I arrived with offers of employment in place from [...], and I remained working for them for approximately two (2) years. [X] immediately commenced attending day care, and [Ms Sandhu] and I would share the task of taking her to and from day care. I recall that my mother arrived in or about mid-2010 to assist us in [X's] care.

[99]

The Full Court there is directing attention to an act done by a party as opposed to the present case where it is an act done "on behalf of a party or parties". That said their Honours observations may be read as purely limited to the factual context before them as the words of the subsection do not have such words of limitation. Either way even if it were to be considered at the third stage there would need to be some evidentiary foundation for its consideration even within the rubric of something as broad as the "justice of the case".
As the matter was not argued before me nor was any alternate submission made that it should be considered under s 75(2) of the Act and where the husband sought no s 75(2) adjustment, I do not propose to consider the matter further or take it into account.
The husband contends that in the final years of the marriage from 2016 to 2020 the wife was often home late between 7.30 pm and 8.30 pm at night. He says that he would call her phone, and the phone would not answer. He says that the wife was rarely at home for dinner in the final years of the marriage, that she was more distant from him and his family, and that his parents cooked meals. The husband's counsel contended that the wife's absence from the home was because she was engaged in extramarital affairs.
Whilst the wife accepted that she engaged in affairs, she did not accept that she was absent or late as contended by the husband. The husband's parents, consistent with the case advanced by the husband, would presumably have been able to give evidence supportive of such contention but were not called to give evidence. I draw an inference that their evidence would not have assisted the husband (Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 36). I am not satisfied that the wife was as absent as the husband's counsel submits. Her denials were not shaken in cross-examination. I accept the wife's evidence.
During the course of the marriage, the parties purchased properties in Country D as well as Australia. I am not satisfied despite cross-examination on this issue (which I note was not the subject of a submission) that the wife had a beneficial interest in a property owned with her mother in Country D and which was sold in 2015.
The funds to acquire the properties the parties purchased in Country D and Australia came from the party's income and the husband's initial savings. During the relationship some of the properties were tenanted and I accept that during the relationship the husband managed the parties' finances and attended to the majority of the issues with such investments.
I accept the husband's evidence that he managed the process where a DA was obtained for a granny flat at the former matrimonial home and at the JJ Street property and accept the husband's evidence that he has post-separation effected various repairs and renovations to the investment properties.
Upon the parties' separation in February 2020, the wife removed from the joint savings of the parties approximately $270,000. Such sum has been brought to account in the pool of assets for division. The evidence reveals that the husband also withdrew various sums of money which he utilised to meet legal fees, living expenses and maintaining mortgages over the various properties owned by them.
The husband asserts at paragraph 73 of his affidavit that between February 2020 and January 2022 the wife made no contribution to the mortgages secured over the Australian properties. That absolute statement is contradicted by what he states as follows:
1. Between 3 July 2020 and 12 March 2021 neither I nor [Ms Sandhu] paid the mortgage secured over the former matrimonial property. Between 13 March 2021 and 30 January 2022, I paid $16,402 to the former matrimonial home mortgage. [Ms Sandhu] did not contribute to the mortgage during this time. Between 30 January 2022 and July 2024, [Ms Sandhu] has paid $61,601 towards the mortgage secured over the former matrimonial home. I have not contributed to that mortgage during this time.
During the period in which the husband was not paying the mortgage, the wife was paying rent. In relation to the husband's contention that he managed the mortgages on the investment properties, I accept the wife's evidence at paragraphs 64, 71, and 73 of her affidavit that the mortgage balances in relation to each of the properties said to have been managed and paid by the husband post separation are significantly greater than they were at separation by about $150,000. This is despite him receiving all the rental income for LL Street, JJ Street and the Region NN properties for at least 12 months post-separation (wife's affidavit filed 5 December 2024, paragraphs 63, 70 and 78).
Post separation the wife has paid monies towards a pre-separation debt (wife's affidavit filed 5 December 2024, paragraph 30).
Each make contentions as to the state of the home when the wife assumed occupation in February 2022. I am not able, given the paucity of cross-examination, to make a finding nor do I need to resolve the issue. I accept the wife's evidence as to the repairs and renovations she made to the home post-separation and to JJ Street (wife's affidavit filed 5 December 2024, paragraphs 58 and 75).
Post-separation the husband has spent no time with the children and the final orders made on 8 May 2024 provide for no time. I accept that the wife has made the totality of the parenting contributions in the five years subsequent to separation. The wife gives unchallenged evidence of her contributions to the care of the children in the period post-separation. I accept her evidence.
Part of the wife's case on contribution was her contention that she was the victim of family violence perpetrated by the husband that made her contributions both during the marriage and post-separation significantly more arduous.
Family violence in a financial case is only relevant where it impacts upon the capacity of a party to contribute. There must be some nexus between the acts of family violence and the contributions of a party.
In Keating & Keating [2019] FamCAFC 46; (2019) FLC 93-894, their Honours in the Full Court observed in regard to both the Full Court decision in Kennon as well as the Full Court decision in Spagnardi & Spagnardi [2003] FamCA 905 as follows:
1. ... the Court in Spagnardi was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make relevant contributions. And, depending upon the nature of the violence established, in the absence of express evidence about the effect that violence had on the victim spouse's contributions, how difficult it might be for the Court to draw inferences which would establish the evidentiary nexus (see Spagnardi at [42]). ...
2. In any event, the primary judge gave no consideration to the inferences that might properly be drawn from the wife's albeit limited evidence as to the effect on her of the husband's violence taken in conjunction with her evidence of the severity of the violence...
The Full Court directs that the necessary nexus between the alleged conduct and the contributions being made significantly more arduous can be established either by direct evidence or by inference. As their Honours in the Full Court in Britt & Britt [2017] FamCAFC 27; (2017) FLC 93-764 observed:
1. The respondent submitted that the appellant's evidence was not relevant to an issue because even if it was evidence of family violence, the appellant had called no evidence to suggest that the violence had made her contributions more onerous. This submission overlooks the obvious point that the court can infer from appropriate evidence that there was a nexus between the conduct and the relevant contributions.
In Benson & Drury [2020] FamCAFC 303; (2020) FLC 93-998 ("Benson & Drury"), the Full Court observed as follows:
1. ... An inference is an assent to the existence of a fact which is based on the proven existence of some other fact or facts, drawn as part of the fact finding process as an exercise of ordinary powers of deduction and reason in the light of human experience, unaffected by any rule of law (G v H [1994] HCA 48; (1994) 181 CLR 387 at [4]). Obviously, the strength of the subject inference depends upon the quality of the underlying evidence. It must be reasonable to draw the inference from primary facts. Mere conjecture will not suffice (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 275-278 per Spigelman CJ; Carr v Baker [1936] NSWStRp 20; (1936) 36 SR (NSW) 301 at 306-307 per [Country F] CJ). Importantly, the evaluation of the evidence from which the subject inference is sought to be drawn should be thorough and balanced. In the context of a Kennon argument, any factual controversies over the alleged misconduct of one spouse and its alleged deleterious consequential effects upon the other spouse should be resolved by familiar forensic techniques. Disputed but untested allegations, are not facts (Keating at [55]-[66]).
In Benson & Drury, the Full Court reminds:
1. We pause to note that although sometimes, in the context of the Kennon argument, words such as "adverse impact"; "more arduous" or "more onerous" are used, the guideline requires the conduct of one party to have had a significant adverse effect on the contributions of the other or to have had made that party's contributions significantly more arduous than they ought have been. The conduct has to have had a discernible impact upon the contributions of the other party (Kennon at 906).

[102]

It is immediately apparent that a plain reading of the paragraph does not support what the husband's counsel contended it said. When this was raised with counsel for the husband, he submitted that the Court should infer that his Honour's finding was consistent with his Honour's observations at [33], [66], [69], [81] and [82] or that the Court could construe that to be his Honour's finding. When pressed for an authority that would permit the drawing of such an inference or construction dissonant with and contrary to the clear words of his Honour, counsel could cite none.
In Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507, the plurality in the High Court said relevantly for the purposes of the husband's submission:
1. Estoppel in relation to judicial determinations is of a different nature. It is a common law doctrine informed, in its relevant application, by similar considerations of finality and fairness. Yet its operation is not confined to an exercise of judicial power; it also operates in the context of a final judgment having been rendered in other adversarial proceedings. It operates in such a context as estoppel operates in other contexts: as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law.
2. Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding.... The second form of estoppel is almost always now referred to as "issue estoppel". Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies"...
3. The present significance of the recognition of those three forms of estoppel is that each has the potential to preclude assertion of a right or obligation, or the raising of an issue of fact or law, between parties to a proceeding or their privies...

[103]

An estoppel if it exists invites of no exceptions. It is not a matter of discretion, it either exists or it does not. Thus, to exist there must have been prior proceedings between the same parties which resulted in a final determination which included as a necessary ingredient of that final determination a resolution of a matter of fact or law which same issue is sought to be relitigated between the same parties in subsequent proceedings.
I have read carefully [33], [66], [69], [81] and [82] of the final parenting Reasons together with [118] and the final parenting Reasons as a whole because to do otherwise would be to fail to have regard to the context. None of those paragraphs individually or collectively permit of the conclusion urged by the husband. Justice Harper did not make a finding that family violence had not occurred. He deliberately, as is apparent from the clear words used consistent with a reading of the suggested paragraphs and the judgment as a whole, in fact "made no finding". In the absence of a finding, determining that issue in the earlier proceedings, no issue estoppel can arise in these proceedings.
But for the wife's assertions as to family violence and the husband's absolute denials, no aspect of the factual controversy would have called for a credit finding which generally should only be made where the circumstances compel its making (Adamson & Adamson [2014] FamCAFC 232; (2014) FLC 93-622). Given the contentions and denial, the making of a credit finding becomes unavoidable.
Each of the parties' affidavits addressed the issue of family violence. It is clear from the cross-examination, documents that were tendered, and from the fact that the parties had been involved in contested parenting proceedings that proceeded to judgment, that the husband was fully aware of the wife's case in so far as she asserted that he had perpetrated family violence upon her comprising of numerous instances of physical and sexual assaults and emotional abuse.
Each of the counsel addressed some but not all of the allegations. While the approach adopted in the affidavits foreclosed a submission in the terms of Browne v Dunn (1893) 6 R 67 it remains necessary to make findings based upon the evidence as to whether the wife has proved her case on the balance of probabilities that the husband had perpetrated family violence.
The wife's affidavit was rich in detail in the recounting of the allegations identifying in many instances time, place and the presence of others. Her affidavit provided a dense factual narrative of what had happened. The husband in that knowledge elected not to traverse the allegations beyond an absolute denial. In many of the instances referred to by the wife (but not all) only the parties were present. The resolution of the issue thus turns on whose version is to be preferred.
I watched carefully and listened to the evidence of both parties over the two days of hearing. I have closely compared their oral testimony with their written evidence.
I found the husband to be an unreliable witness. He failed to make concessions and advanced propositions that were contrary to the case advanced on his behalf. It was put to him that the wife was the party primarily responsible for the care of the children which he denied, contending his mother was. His counsel submitted that the wife was the primary homemaker and parent. He was argumentative and discursive and had to be directed to answer the question on a number of occasions. On a number of occasions, he descended into semantic arguments with the cross-examiner the purpose of which I am satisfied was to obfuscate and avoid addressing the question.
In cross-examination he denied that for a period of time post-separation he had received the wife's share of the rental income. I am satisfied that his denial was deliberately misleading in circumstances where it was clear from the evidence that he had received the rent. He was cross-examined as to the source of payment of his legal fees. It was put to him that part of his legal fees had been paid from monies sourced from funds in Country D. He denied the proposition. When it was apparent the cross-examiner was searching his affidavit for where he had advanced such a proposition, he somewhat triumphantly and non-responsively announced that the cross-examiner would not find it as it did not exist. It did exist and was referred to in his affidavit. I am satisfied that the husband's outburst was calculated to mislead.
His counsel submitted that the husband's response to questions could be explained by the fact that English was not his first language. I do not accept that submission. I am satisfied given the way the husband engaged with questions and his attempts to correct the cross-examiner with his semantic challenges that he well understood and comprehended the questions he was being asked.
I approach his evidence and whether he was truthful in his blanket denials with high degree of circumspection and caution.
The wife's affidavit made clear that she had not recounted all incidents of violence perpetrated on her by the husband. In her affidavit she said:
1. I was not then, and am still not able to properly articulate all of the family violence. I recognise the profound impact it has had on me in various ways. I have provided some examples below of [Mr Bhagat's] violence and coercive and controlling ways but this is only part of the picture that has led to me having feelings of worthlessness and the inability to properly function. My hope is that once these proceedings are finalised, I will finally be able to heal more so that I do not need to continue to be triggered by him.
2. It is difficult to put an estimate on how many times he said or did certain things as his conduct was pervasive and constant, in differing ways throughout the relationship. I have used the terms frequently, many, typically, usually and regularly because I simply am unable to put a more specific frequency on the incidents to which I refer. To me the incidents felt as though they were constant and ran into each other.
Her affidavit recounted events by reference to place, who was present, what was said, and what happened. The husband denied each and every incident. In his affidavit, he said:
1. On that basis, I want to make it clear that I have never at any stage sexually assaulted [Ms Sandhu] or forced her to have sex with me. I have never held her down on a bed, or threatened to hit her so that she would have sex with me. I have never threatened [Ms Sandhu] at all or behaved in a way which was intimidating or controlling. I have never had sex with or penetrated [Ms Sandhu] in such a way to cause her to bleed, nor have I observed her crying after sex. I have never hit, slapped or punched [Ms Sandhu] or in any other way physically assaulted [Ms Sandhu]. I have never abused her or made [...] discriminative comments. I have not controlled what she wore, where she worked, who she socialized with or what she did with her free time. I deny being financially controlling and maintain that [Ms Sandhu] had full access to and control over any joint accounts, including offset accounts and mortgage accounts throughout our marriage. I have never threatened to destroy, or destroyed any of our property, and I would never do so and in particular not to defeat her claim in the family law proceedings.
2. I deny any allegation I assaulted [Ms Sandhu] whilst we were living in [the United Kingdom]. I have deposed to this previously. In [...] 2020 I obtained a document from the UK Police confirming there were no reportable incidents using my name or [Ms Sandhu's] name.

[109]

Throughout her cross-examination, the husband's counsel returned to this theme that the wife had falsely sworn affidavits containing allegations of sexual and physical assault and abuse as part of this "end-to-end strategy". In each instance and repeatedly the wife denied knowledge of the detail of this strategy and denied that her allegations of physical and sexual assault were false and denied they were part of this strategy. I accept the wife's evidence.
The husband's counsel cross-examined her on various counselling attendances in 2018 (Exhibit 20). The wife had given evidence that she had attended on the counsellors because of the problems she was experiencing with the husband. The wife was cross-examined about the entries which made no reference to any violence or assaults and related to her relationship with another man. It was in essence put to her that the absence of any reference to the husband was because that was not the reason for attendance, that if it had been it would have been recorded, and the absence of a reference is demonstrative of the fact that the husband had not perpetrated family violence upon her. The wife maintained that she had told the counsellor about the problems with the husband. The three handwritten notes are exceptionally brief in what they record. The notes dated January 2018 are about six lines long, the April 2018 notes are eleven lines long and the November 2018 notes are ten lines long. They cannot be described as comprehensive. They, not only by their brevity by also by applying logic and common sense, cannot purport to record all that was said. At their highest they amount to evidence of what was recorded by the counsellor. They do no not establish that the wife did not report allegations of family violence.
There are two further pages of typed notes which may be entries in 2019, but it is not clear. The first page is brief while the second is more comprehensive. The second page appears to be the record of a first consultation for couples therapy as it ends with the counsellor recording that she will see the husband. It does not record assertions of family violence but does record unhappiness with the husband, that the biggest issue with the husband is sex, that he is not generous, and that he needs to be in control of finances. It makes no reference to the wife's relationship with any other person.
The husband's counsel cross-examined the wife on an entry in June 2021 that recorded that the wife had told the police that she had no fear of the husband (Exhibit 19). The wife said she thought police might have got it confused and denied that she had said that to the police. There is no reason not to accept her evidence. Her denial is consistent with her evidence before Harper J and is consistent with her earlier reports of a history of violence recorded in counselling notes some 12 months earlier (Exhibit 23).
The wife was cross-examined at length by the husband's counsel. I found the wife's evidence to be consistent with her affidavit and her evidence before Harper J. Notwithstanding the admission and the falsity of it to Harper J, on balance I found the wife to be a more reliable witness than the husband and prefer the wife's evidence to that of the husband.
I am not persuaded that the mere failure to provide a contemporaneous or closely contemporaneous doctors or counsellors note demonstrates the unreliability let alone falsity of her allegations. Exhibit 23 records in detail her report to her counsellor in July 2020 containing references to instances of physical violence perpetrated during her marriage. It includes a reference to an assault in 2008 where she was slapped by the husband in the presence of the husband's mother. It accords with the wife's evidence in her affidavit. It also refers to an assault in 2015 where she was again slapped for which an AVO was granted and to which the husband consented on a without admissions basis.
The existence of the 2015 AVO, the alleged assault that under pinned it, and the husband's without admission consent to its making undermines the logic of the case theory that the wife's allegations were invented and fabricated as part of the "end-to-end strategy" that came into existence around the time of separation.
Many of the incidents the wife alleges occurred in the presence of the husband's parents. In that respect, she refers in her affidavit to being denigrated in his parent's presence at paragraphs 119, 140, 141, to being slapped in the presence of the husband's parents in 2008 and again in 2015 at paragraph 145, and refers to making a complaint to the husband's father of being slapped at paragraph 151.
In RPS v R [2000] HCA 3; [2000] 168 ALR 729 the High Court observed at 737 as follows:

[111]

While in Cubillo v Commonwealth (No 2) [2000] FCA 1084; [2000] 174 ALR 97 at 356 the Court held "the onus of establishing unavailability is on the party against whom the rule in Jones v Dunkel operates". The husband's parents were clearly available to have given evidence. The fact of their residence in Country D does not mean they could not have sworn an affidavit in the husband's case.
I am satisfied that the husband's parents are persons who would have been expected to have been called in the husband's case given the seriousness of the allegations and in light of the husband's case theory that the wife's assertions are a fabrication and part of the "end-to-end strategy". I am satisfied that their evidence would not have assisted the husband.
I am persuaded by the wife's evidence as set out in her affidavit and about which she remained unmoved in cross-examination, accepting as I do the seriousness and gravity of the allegations she makes. Her evidence was detailed and convincing. No part of her cross-examination undermined the evidence that she gave or pointed to an internal inconsistency in her recount of an event. For the above reasons, I prefer her evidence to that of the husband.
In circumstances where I prefer the wife's evidence over that of the husband, I accept the wife's evidence in her affidavit at paragraphs 140-154 that she was physically assaulted by the husband during the relationship. I accept her evidence at paragraphs 121, 124-129, 136 and 138 that he forced her to have sex. It was contended by the husband that he had not denigrated the wife; I accept her evidence at paragraphs 115, 119 and 131(c) that he had. I accept her evidence at paragraphs 116 and 133 that he made threats to her. It was put to the wife in cross-examination that the husband had never called her names. The proposition is inconsistent with the husband's admission that he called her a prostitute. I accept her evidence of coercive and controlling conduct on the part of the husband as set out in the wife's affidavit at paragraphs 156-179.
I am for the above reasons comfortably satisfied that the wife has discharged the onus of proof and find the husband did perpetrate family violence on the wife during the course of the relationship.
I do not accept the husband's counsel's submission that there is no evidence of the wife's contributions during the marriage having been made more onerous by the family violence. I am satisfied that the perpetration of that family violence impacted upon the wife's contributions such that her contributions were made more onerous. There is both direct evidence and I am able to infer from the evidence the necessary nexus.
I accept the wife's evidence within her affidavit at paragraph 112, that she was "on guard" as result of the husband's conduct which she found exhausting, that that she became depressed and was recommended by a doctor to take medication but was too afraid of the husbands reaction to take them at paragraph 165, I accept her evidence at paragraph 201 and paragraph 202 as to her depression and feeling suicidal and helpless, embarrassed and ashamed. I accept her evidence at paragraphs 197-200 of the physical and emotional toll and impact upon her of the family violence during the course of the relationship.
It is reasonable to infer that a party who lives in a situation where they are fearful, embarrassed and/or humiliated as a consequence of the perpetration of family violence upon them will find the making of contributions significantly more arduous than they would otherwise be, absent such conduct. I am satisfied that the wife's contributions both financially and as a homemaker and parent in the context of being a victim of family violence during the marriage were made more onerous and difficult than it otherwise would be absent that family violence.
I am satisfied that the husband's contention that contribution assessment favours him fails to pay sufficient regard to the wife's contributions during the marriage, the impact on her contributions by being the victim of family violence and the enormity of the wife's post separation parenting contribution. I am satisfied having regard to the totality of the contributions of both parties over the period of the relationship and to the time of hearing a proper holistic assessment gives rise to a contribution assessment in favour of the wife at 53 per cent.

[114]

Given the above findings, the parties' assets will be divided as to 60 per cent to the wife and 40 per cent to the husband. Considering the contributions of the parties and the matters referred to under s 75(2) of the Act, I am satisfied that a division in those percentages is just and equitable recognising as I do the mathematical effect in dollar terms of such a division.
As identified earlier in these reasons, each party sought to retain the Region NN property. If the Region NN property and its mortgage were removed from the pool of assets, then the net balance of the asset's totals $3,068,921.13. A division of those assets as to 60 per cent to the wife and 40 per cent to the husband will see the wife receiving assets having a value of $1,841,353.
The wife currently holds net assets including addbacks and superannuation as referred to in the pool of assets together with the balance of the funds in the offset account (Item 7) and the account in Country D (Item 29) totalling $1,378,134.
Consequently there would need to be a payment by the husband to the wife of $463,219. There will be insufficient equity in the Region NN property to provide for that payment to the wife where, according to the balance sheet, its equity is approximately $374,000 before costs of sale and the agreement that $280,000 be retained to meet capital gains tax and tax on the Country D properties (Exhibit 27).
There is no evidence before me that the husband has the capacity to make a payment of that magnitude to the wife. If the wife were to retain the Region NN property with its mortgage, then the sum payable by the husband will correspondingly reduce. On balance I am satisfied that the justice and equity of the case calls for the adoption of such an approach.
The net pool of assets including the Region NN property is $3,443,272. A 60 per cent division of that pool to the wife is $2,065,963. If the wife retains her property and the Suburb N and Region NN properties subject to their mortgages, she will have assets having a value of $1,752,485 and so there will need to be a payment by the husband to the wife of $313,478.
To give effect to my findings, I propose to order the husband within 90 days to make a payment of $313,478 to the wife simultaneously with the wife transferring to the husband the JJ Street property. In the event he does not, then orders will be made for the sale of the JJ Street property.

Bhagat & Sandhu (No 4) [2025] FedCFamC1F 229 (9 April 2025)

At a glance

Court

Decision date

Before

Source

Judgment (118 paragraphs)

Legislation Cited (2)

Cases Cited (13)