KHOZA & NKOSI - [2020] FCCA 2908

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHOZA & NKOSI

[2020] FCCA 2908

Catchwords:
FAMILY LAW – Property – undefended hearing – adjustment of property interests – superannuation – in the payment phase – orders made as sought by the applicant wife.

Legislation:

Family Law Act 1975 (Cth), ss.79, 90XT.

Cases cited:

Bevan & Bevan [2014] FamCAFC 19

Black & Kellner [1992] FamCA 2

Carron & Laniga [2019] FamCAFC 115

Chapman & Chapman [2014] FamCAFC 91

Robb & Robb [1994] FamCA 136

Russell & Russell [1999] FamCA 1875

Stanford & Stanford [2012] HCA 52

Teal & Teal [2010] FamCAFC 120

Weir & Weir [1992] FamCA 69

Applicant:

MS KHOZA

Respondent:

MR NKOSI

File Number:

PAC 5188 of 2019

Judgment of:

Judge Obradovic

Hearing date:

19 August 2020

Date of Last Submission:

7 October 2020

Delivered at:

Parramatta

Delivered on:

27 October 2020

REPRESENTATION

Appearing for the Applicant:

Ms Diliberto

Solicitors for the Applicant:

Bell Lawyers

Appearing for the Respondent:

No appearance

ORDERS

That, in accordance with section 90XT(1)(b) of the Family Law Act 1975:
(a)the Applicant Wife (or the Applicant Wife's administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid the specified percentage out of the Respondent Husband's interest in B Superannuation fund;
(b)the Respondent Husband’s entitlement (or the entitlement of such other person to whom a payment may be made out of the Respondent Husband's interest) in B Superannuation fund, is correspondingly reduced by the force of this Order; and
(c)the percentage specified for the purposes of this Order is 75%.
That the trustee of B Superannuation fund do all such acts and things and sign all such documents as may be necessary to;
(a)Calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the Applicant wife in the immediately preceding clause of this order.
(b)Pay the entitlement whenever the trustee makes a splittable payment from the Respondent Husband's interest in B Superannuation fund.
That this Order has effect from the operative time and the operative time is 7 days after the date of service of this Order upon the trustee.
That the furniture, furnishings and effects presently situate in the container number …67 shall be declared the sole property of the Applicant Wife.
The Respondent Husband must do all acts and execute all documents submitted by the Applicant Wife to transfer to the Applicant Wife the registration and the parties' interest in motor vehicle C.
Unless otherwise specified in these Orders:
(a)Each party be solely entitled to the exclusion of the other, of all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders and for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank's records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person…

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 KHOZA & NKOSI

Details

AGLC: Khoza and Nkosi [2020] FCCA 2908
Case: [2020] FCCA 2908
Decision Date: 27 October 2020

CaseChat Overview and Summary

In the matter of KHOZA & NKOSI, Judge Obradovic of the Federal Circuit Court of Australia considered an application by the Applicant Wife for an adjustment of property interests against the Respondent Husband. The proceedings were undefended, and the primary dispute concerned the division of the Respondent Husband's superannuation entitlement, which was in the payment phase.

The court was required to determine the appropriate percentage of the Respondent Husband's interest in the B Superannuation fund to be allocated to the Applicant Wife. Additionally, the court needed to make consequential orders to ensure the effective transfer of this entitlement and to address the division of other property, including specific chattels and a motor vehicle.

Applying section 90XT(1)(b) of the *Family Law Act 1975*, the court ordered that the Applicant Wife be entitled to 75% of the Respondent Husband's interest in the B Superannuation fund. The court further directed the trustee of the superannuation fund to calculate and pay the awarded entitlement from splittable payments. Orders were also made for the transfer of a motor vehicle and furniture to the Applicant Wife, with each party to retain other property in their possession. The court also made provision for the Registrar to execute documents if a party failed to do so, and to remove all outstanding issues from the list of cases awaiting finalisation.

Orders

Orders of the court

That, in accordance with section 90XT(1)(b) of the Family Law Act 1975:

(a) the Applicant Wife (or the Applicant Wife's administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid the specified percentage out of the Respondent Husband's interest in B Superannuation fund;

(b) the Respondent Husband’s entitlement (or the entitlement of such other person to whom a payment may be made out of the Respondent Husband's interest) in B Superannuation fund, is correspondingly reduced by the force of this Order; and

That the trustee of B Superannuation fund do all such acts and things and sign all such documents as may be necessary to;

(a) Calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the Applicant wife in the immediately preceding clause of this order.

(b) Pay the entitlement whenever the trustee makes a splittable payment from the Respondent Husband's interest in B Superannuation fund.

That this Order has effect from the operative time and the operative time is 7 days after the date of service of this Order upon the trustee.

That the furniture, furnishings and effects presently situate in the container number …67 shall be declared the sole property of the Applicant Wife.

The Respondent Husband must do all acts and execute all documents submitted by the Applicant Wife to transfer to the Applicant Wife the registration and the parties' interest in motor vehicle C.

Unless otherwise specified in these Orders:

(a) Each party be solely entitled to the exclusion of the other, of all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders and for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank's records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the condition for payment out of such entitlement;

(b) Each party is solely liable for and indemnifies the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.

In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, then pursuant to Section 106A, the Registrar or the Deputy Registrar of the Federal Circuit Court of Australia at Parramatta is hereby appointed to execute all deeds, documents and instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments.

Remove all outstanding issues from the list of cases awaiting finalisation.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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