Hamza and Magdi - [2011] FamCA 206

FAMILY COURT OF AUSTRALIA

HAMZA & MAGDI

[2011] FamCA 206

FAMILY LAW - PROPERTY - Settlement in relation to marriage – Duty of full and frank disclosure – Valuation of overseas properties – Credit – Leave to amend affidavit in chief during cross-examination – Where the husband rejected the signature on the jurat as his own
FAMILY LAW - SPOUSAL MAINTENANCE – Where the wife is unable to support herself adequately

Family Law Act 1975 (Cth) – s 72, s 74, s 75(2), s 79, s 81

Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693
Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414
Ferraro and Ferraro (1993) FLC 92-335
Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355
Lee Steere and Lee Steere (1985) FLC 91-626
Weir and Weir (1993) FLC 92-338

APPLICANT:

Ms Hamza

RESPONDENT:

Mr Magdi

FILE NUMBER:

PAC

5413

2007

DATE DELIVERED:

30 March 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Johnston J

HEARING DATE:

6, 7 & 8 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Barry

SOLICITOR FOR THE APPLICANT:

Legal Aid NSW, Bankstown Office

COUNSEL FOR THE RESPONDENT:

Mr Mihalic

SOLICITOR FOR THE RESPONDENT:

Morgan Ardino & Co

Orders

Paragraphs 2-6 of these orders are binding on R Superannuation Limited, the Trustee of the R Superannuation Plan (“the Plan”).
Pursuant to s 90MT(4) of the Family Law Act 1975 the base amount to be allocated to the wife out of the interest of the husband in the Plan is $100,000.
Pursuant to s 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the interest held by the husband in the Plan, the wife is entitled to be paid the amount which is calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, and there be a corresponding reduction in the amount that the husband would have had but for these orders.
That order 3 has effect from the operative time.
The operative time for the purposes of order 4 of these orders is four (4) business days after the date of service of these orders upon the Trustee of the Plan.
That until such time as the superannuation split to the wife pursuant to these orders can be rolled over into a separate account of the wife:
6.1.The husband shall provide to the wife no less than twenty-eight (28) days’ notice before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accepts or becomes entitled to access the whole or any part of his entitlement in the Plan.
6.2.The husband shall direct and authorise the Trustee of the Plan to communicate with the wife and/or any person authorised by her in writing:
6.2.1.To answer any reasonable inquiries as may be made by her or on her behalf from time to time in relation to her entitlements in the Plan; and
6.2.2.To provide to the wife and/or her authorised…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hamza and Magdi

Details

AGLC: Hamza and Magdi [2011] FamCA 206
Case: [2011] FamCA 206
Decision Date: 30 March 2011

CaseChat Overview and Summary

This matter concerned orders made by Johnston J in the Federal Circuit Court of Australia, concerning the division of property and spousal maintenance between Hamza and Magdi. The dispute involved the allocation of the husband's interest in the R Superannuation Plan, a monetary payment, and the security for that payment, as well as spousal maintenance.

The court was required to determine the specific amounts and mechanisms for the division of the superannuation interest, the payment of a lump sum, and the provision of spousal maintenance. Key legal issues included the application of sections 90MT of the *Family Law Act 1975* and relevant regulations concerning superannuation splitting, the creation of a charge over property to secure a debt, and the calculation and variation of spousal maintenance.

Johnston J ordered that a base amount of $100,000 be allocated to the wife from the husband's superannuation interest, with further entitlements to be paid as splittable payments become payable, calculated in accordance with the *Family Law (Superannuation) Regulations 2001*. The court also ordered the husband to pay the wife $41,092 within 42 days, secured by a charge over his interest in a property at BB Street, D, Sydney. Additionally, the husband was ordered to pay spousal maintenance of $130 per week, with a mechanism for annual variation based on the Consumer Price Index. The orders were to commence operation on 29 April 2011.

Orders

Orders of the court

Paragraphs 2-6 of these orders are binding on R Superannuation Limited, the Trustee of the R Superannuation Plan (“the Plan”).

Pursuant to s 90MT(4) of the Family Law Act 1975 the base amount to be allocated to the wife out of the interest of the husband in the Plan is $100,000.

Pursuant to s 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the interest held by the husband in the Plan, the wife is entitled to be paid the amount which is calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, and there be a corresponding reduction in the amount that the husband would have had but for these orders.

That order 3 has effect from the operative time.

The operative time for the purposes of order 4 of these orders is four (4) business days after the date of service of these orders upon the Trustee of the Plan.

That until such time as the superannuation split to the wife pursuant to these orders can be rolled over into a separate account of the wife:

6.1. The husband shall provide to the wife no less than twenty-eight (28) days’ notice before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accepts or becomes entitled to access the whole or any part of his entitlement in the Plan.

6.2. The husband shall direct and authorise the Trustee of the Plan to communicate with the wife and/or any person authorised by her in writing:

6.2.1. To answer any reasonable inquiries as may be made by her or on her behalf from time to time in relation to her entitlements in the Plan; and

6.2.2. To provide to the wife and/or her authorised representative a copy of any notice of any application or request by the husband which seeks release of entitlements in the Plan in so far as that release may effect the wife’s entitlement in the Plan pursuant to these orders.

6.3. The husband by himself, his servants and/or agents is hereby restrained from doing any act or thing which would prevent the wife, her heirs, executors, administrators or nominees from receiving the benefits in the Plan to which she is entitled pursuant to these orders.

That within 42 days the husband pay to the wife the sum of $41,092.

That the husband’s obligation pursuant to the previous order is to be secured and for this purpose the husband is to do all things and sign all documents necessary to create a charge over his interest in the property at BB Street in D, Sydney, New South Wales with his duty to comply with the order. The wife may lodge a caveat to protect her interest in the charge but she is to remove it at her expense upon compliance by the husband of his obligation under the said order.

That it is declared that the husband and the wife are the sole owners respectively of all other property and superannuation in their possession and/or control.

10.

That the husband indemnify the wife in relation to all liabilities in respect of his property being Property 1 in Egypt, any taxi and taxi licence in which he has an interest in Egypt and his time share with Hotel Group 1.

11.

That the above orders not commence operation until 29 April 2011.

12.

That both parties have liberty to re-list these proceedings by arrangement with Justice Johnston’s Associate [Associate’s e-mail address] for further submissions about the form of the orders only, at any time not later than 28 April 2011.

13.

That the wife forthwith arrange for service by hand of a sealed copy of these orders on Ms B under cover of a letter particularly drawing Ms B’s attention to paragraphs 8 and 11 of these orders.

14.

That Ms B have liberty to re-list these proceedings for the purpose of making submissions in relation to paragraph 8 of these orders not later than 28 April 2011.

15.

That all exhibits be released.

16.

That the husband pay to the wife or as she shall in writing direct the sum of $130 per week spousal maintenance first payment to be made on 7 April 2011 and each Thursday thereafter.

17.

That the sum referred to in the previous order shall be varied on and from the instalment of maintenance next due after 31 December each year in accordance with the variation in the Consumer Price Index published by the Australian Bureau of Statistics for all groups for Sydney by comparison of the Consumer Price Index as it stands on 31 December immediately preceding the date of variation with the same index at the same date 12 months prior thereto.

18.

That upon compliance by the husband with his obligations under the above property orders the orders made on 8 October 2010 and 16 February 2011 shall be discharged.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.