Trivedi & Awasthi (No 2) - [2022] FedCFamC1F 555

Federal Circuit and Family Court of Australia
(DIVISION 1)
Trivedi & Awasthi (No 2) [2022] FedCFamC1F 555

File number(s): SYC 5604 of 2010

Judgment of: BAUMANN J

Date of judgment: 4 August 2022

Catchwords: FAMILY LAW – PROPERTY – Where further submissions have been received as to a form of order to achieve a just and equitable division of the husband’s future entitlement under a United Kingdom based pension scheme – Issues of enforceability – Order made for appointment of a Pensions Transfer Specialist to provide a report as to the suitability of the husband’s fund to be transferred to a complying Australian superannuation fund

Legislation: Family Law Act 1975 (Cth)

Division: Division 1 First Instance

Number of paragraphs: 15

Date of hearing: 18 May 2022

Place: Brisbane

Counsel for the Applicant: Mr Dura

Solicitor for the Applicant: Horton Rhodes Legal

Counsel for the Respondent: Mr Givney

Solicitor for the Respondent: Zraika Partners Lawyers
ORDERS

SYC 5604 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS TRIVEDI

Applicant

AND:
MR AWASTHI

Respondent

order made by:

BAUMANN J

DATE OF ORDER:

4 August 2022

THE COURT ORDERS:
1.That Mr EE of FF & GG Limited be appointed as a single expert pursuant to Rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 to provide a report as to the suitability of the husband’s G Company Staff Fund to be transferred to a complying Australian superannuation fund, on the following conditions:
(a)The parties shall share equally in the costs of the single expert;
(b)The parties shall provide such further information to the single expert, as he may reasonably require, to assess whether transfer approval would be given, within seven (7) days of such request;
(c)If required by the single expert, the husband shall nominate a complying Australian superannuation fund to be the potential recipient of the husband’s entitlements if approval for transfer is given by the UK authorised Pensions Transfer Specialist. The term “complying” means both a fund established and complying with Australian law, but also a qualifying recognised overseas pension scheme under United Kingdom law; and
(d)Each party shall, at their sole cost, have liberty to provide a copy of the report from the Mr EE to Mr D for further advice and a report.

2.That these proceedings be listed for Case Management Hearing at 9.30am on 7 September 2022 in the Federal Circuit and Family Court of Australia at Brisbane.
3.That the parties have leave to appear by telephone on 7 September 2022 by using the Microsoft Teams conferencing system as follows:
(a)They shall click the below link (if accessing this Order electronically) to join the Microsoft Teams conferencing system, by 9.25am on 7 September 2022; or
(b)They shall each telephone ... by 9.25am on 7 September 2022;
(c)They shall each then enter the pass code ...; and
(d)Hold the line until the Court is ready to connect and proceed with the matter.

Note: The form of the order…

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 Trivedi & Awasthi (No 2)

Details

AGLC: Trivedi & Awasthi (No 2) [2022] FedCFamC1F 555
Case: [2022] FedCFamC1F 555
Decision Date

CaseChat Overview and Summary

The case of Trivedi & Awasthi (No 2) involved a dispute between the parties regarding the division of the husband's future entitlement under a United Kingdom-based pension scheme. The matter was heard in the Federal Circuit and Family Court of Australia, with the Hon. Justice Baumann presiding. The central legal issue was determining a fair and enforceable method to divide the husband's pension scheme in the United Kingdom, considering the complexities and enforceability concerns.

Justice Baumann concluded that the enforcement issues surrounding the husband's proposed method of retaining his pension in the United Kingdom were significant. The court decided that it was just and equitable to repatriate the husband's entitlements to an Australian fund to achieve a more reasonable and enforceable finality for both parties. The court appointed a Pensions Transfer Specialist, Mr. EE of FF & GG Limited, to assess the suitability of transferring the husband's fund to a complying Australian superannuation fund. The parties were directed to share the costs of the expert and provide any required information within a specified timeframe.

The court ordered Mr. EE to report on the suitability of transferring the husband's pension fund to an Australian superannuation fund, with specific conditions for cost-sharing, information provision, and nomination of a receiving Australian fund if transfer approval is granted. The court also scheduled a Case Management Hearing for further proceedings.

In summary, the court's decision focused on finding a practical and enforceable solution for dividing the husband's United Kingdom-based pension scheme, considering the unique challenges and complexities of such a division. By appointing a Pensions Transfer Specialist and setting specific conditions for the transfer process, the court aimed to achieve a just and equitable outcome for both parties.

Orders