Kazmi & Kazmi
[2024] FedCFamC2F 1449
•17 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kazmi & Kazmi [2024] FedCFamC2F 1449
File number(s): SYC 2935 of 2023 Judgment of: JUDGE STREET Date of judgment: 17 October 2024 Catchwords: FAMILY LAW – PROPERTY – proposed consent orders did not reflect a just and equitable alteration of property interests – s 114 injunction – preservation of the property pool - procedural orders Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 7 Date of hearing: 17 October 2024 Place: Sydney Solicitor for the Applicant: Ms V Chandra of Marsdens Law Group Counsel for the First Respondent: Mr N Jackson Solicitor for the First Respondent: Tomasevic Poljak Lawyers For the Second Respondent: The Second Respondent appeared via video/audio-link ORDERS
SYC 2935 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR KAZMI
Applicant
AND: MS KAZMI
First Respondent
MR B KAZMI
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
17 OCTOBER 2024
THE COURT ORDERS THAT:
1.Order 1 made on 30 August 2024 is set aside
2.The matter is fixed for a final property hearing commencing at 10:00 am on 29 May 2025 continuing on till 30 May 2025 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court Australia Act 2021 (Cth).
Injunctions
3.Pursuant to s 114 of the Family Law Act 1975 (Cth) the Court restrains either party from drawing down on any superannuation identified in the balance sheet and or encumbering any real property identified in the balance sheet subject to further order of the Court.
4.Pursuant to s114 of the Family Law Act 1975 (Cth) any purported financial agreement between the parties will not be binding without further order of the Court.
Procedural orders
5.The applicant is directed to file and serve an updated financial statement together with an amended application on or before 10 March 2025.
6.The respondent is directed to filed and serve an updated financial statement together with an amended response on or before 24 March 2025.
7.The applicant is directed to file and serve a consolidated trial affidavit and any affidavit evidence that the applicant wishes to rely on or before 4 April 2025.
8.The respondent is directed to file and serve a consolidated trial affidavit any affidavit evidence that the respondent wishes to rely on or before 2 May 2025.
9.The applicant is directed to file and serve a case outline including a chronology and a list of objections on or before 9 May 2025.
10.The respondent is directed to file and serve a case outline including a chronology and a list of objections on or before 16 May 2025.
11.The parties are directed to file and serve an agreed balance sheet identifying any subject matter the subject of dispute on or before 20 May 2025,
12.Leave is granted to the parties to provide updated valuation evidence in respect of the two properties seven (7) days prior to the hearing.
13.Leave is granted to the parties to provide consent orders to be made in chambers, if appropriate.
THE COURT NOTES THAT:
A.The Court expects the parties to comply with their disclosure obligations, of that continue, including in particular updating their respective superannuation interests if so, requested by either party.
B.There are ongoing disclosure requests between the parties.
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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These proceedings were originally commenced as divorce proceedings on 17 April 2024, by the applicant father (“the father”) and came back before this Court for directions today and are now property proceedings. There were earlier provided proposed consent orders that did not reflect on their face, a just and equitable alteration of property interests and were clearly not appropriate orders.
The Court did not appreciate the nature of the ground upon which it was sought to join one of the three children of the parties to the proceedings. There was an order made on 30 August 2024 under the Court's apprehension that it was necessary for the purpose of proper settlement negotiations and/or reflecting an interest in the property. On that basis, the Court joined Mr B Kazmi as a party to the proceedings. Having now had the proposed settlement orders that are not appropriate come back before the Court, it is apparent that Mr B Kazmi has no property interest in the proceedings and there is no proper basis for his joinder.
The powers, under s 79 of the Family Law Act 1975 (Cth) (“the Act”) in respect of alteration of property interests, concern the property of the respondent mother (“the mother”) and the father as identified in the balance sheet, which includes the superannuation. The Court is satisfied that it is proper to remove Mr B Kazmi as a party as he should not have been joined to the proceedings.
The Court also raised, with the parties, the potential need to preserve the subject matter of the proceedings in circumstances where it is apparent that the age of the parties are such that the superannuation or pension accounts might otherwise be drawn down upon in circumstances where the Court would then need to deal with add-back issues. Rather than have such an issue occur, the Court is satisfied that it is an appropriate matter in respect of which to ensure the preservation of the property pool pending further order of the Court, in respect of both the superannuation and or pension identified in the balance sheet and including the real property identified in the balance sheet.
The Court has granted a further injunction in circumstances where the Court was informed that the parties may seek to take the avenue of entering into a financial agreement. Such a financial agreement does not ordinarily require the consent or approval of the Court. Given the history of these proceedings, while the s 79 proceedings are still on foot, the Court is satisfied it has power, under s 114 of the Act, to preserve the subject matter of the proceedings and to ensure that the best interests of both parties are preserved, in respect of the potential s 79 alteration of property interests, and that any proposed financial agreement, given the history that has occurred in respect of proposed orders, that one party identified could not be said to be just and equitable.
The Court is satisfied it is appropriate to impose such a restraint pending the determination of the s 79 of the Act proceedings or their disposal.
It is for these reasons that the Court makes the above orders.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Street. Associate:
Dated: 18 November 2024
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