WILKINSON & KEMP - [2020] FCCA 69

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILKINSON & KEMP

[2020] FCCA 69

Catchwords:
FAMILY LAW – Property – prior hearing ordered husband to pay wife monies and costs – wife sought superannuation splitting order in alternative but alternative order not made by primary Judge – husband voluntarily entered bankruptcy before time for payment expired – wife’s application for superannuation splitting order – Court’s duty to endeavour to ascertain rights of self represented litigants – machinery provisions power to amend s.79 order – variation of orders after default s.79A(1)(c).

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 79, 79A, 79A(1)(b), 79A(1)(c), 90XT(1)(a), 90XE, 106A, 117
Family Law (Superannuation) Regulations 2001, Part 6
Evidence Act 1995 (Cth), s.140(2)
Bankruptcy Act 1966 (Cth), s.116(2)

Cases cited:

Neil v Nott (1994) 121 ALR 148
In the Marriage of Molier and Van Wyk (1980) 7 Fam LR 18
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45
Tomlinson v Ramsey Food Processing Pty Limited (2015-16) 256 CLR 507
Kemp & Wilkinson [2015] FCCA 1621
Kemp & Wilkinson (No.2) [2015] FCCA 2268
Wilkinson & Kemp [2015] FCA 3308
Wilkinson & Kemp [2016] FCCA 1628

Applicant:

MS WILKINSON

Respondent:

MR KEMP

File Number:

SYC 7637 of 2012

Judgment of:

Judge B Smith

Hearing date:

15 March 2019

Date of Last Submission:

15 March 2019

Delivered at:

Sydney

Delivered on:

16 January 2020

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

ORDERS

Within three (3) months from 17 June 2015, the respondent, Mr Kemp born … 1966, pay the applicant, Ms Wilkinson born … 1983 the sum of $45,352.42 by way of settlement of property.
Except as otherwise provided for in these Orders:
(a)Each party will be solely entitled, to the exclusion of the other, to all other property including real property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders and that for this purpose bank accounts are deemed to be in the possession of the party whose name appears on the bank’s record thereof, insurance policies are deemed to be in the possession of the owner of the policy, 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 conditions for payment out of such entitlements; and
(b)Each party is to be solely liable for and indemnify the other party against any debts or liabilities in their respective names.
Within three (3) months of 24 August 2015, the respondent is to pay the applicant’s costs as ordered by the Order of 29 April 2014 in the sum of $2,060.00.
All other extant Applications be dismissed.
If Order 1 herein has not been complied with by 18 September 2015 then Orders 6-9 below shall take effect.
That the base amounts of $45,352.42 is allocated, as required by Section 90XT(1)(a) of the Family Law Act 1975, to the applicant out of the interest held by the respondent…

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 WILKINSON & KEMP

Details

AGLC: WILKINSON & KEMP [2020] FCCA 69
Case: [2020] FCCA 69
Decision Date: 16 January 2020

CaseChat Overview and Summary

In the matter of *Wilkinson & Kemp*, Judge B Smith of the Family Court of Australia considered an application by Ms Wilkinson concerning property settlement and costs orders made against Mr Kemp. The primary orders, made on 29 April 2014, required Mr Kemp to pay Ms Wilkinson a sum of $45,352.42 for property settlement and $2,060.00 for costs. These payments were to be made within specified timeframes. However, Mr Kemp voluntarily entered bankruptcy before the payment deadlines expired. Ms Wilkinson subsequently sought a superannuation splitting order as an alternative to the monetary payments, which had not been made by the primary judge.

The court was required to determine whether it had the power to make a superannuation splitting order in light of Mr Kemp's bankruptcy and his prior default on the monetary orders. Specifically, the court considered the application of s 79A(1)(c) of the *Family Law Act 1975* (Cth), which allows for the variation of orders after default, and the court's duty to ascertain the rights of self-represented litigants. The court also examined the "machinery provisions" for amending orders and whether the court could effectively make an alternative order for superannuation splitting when the primary orders had not been complied with.

Judge B Smith reasoned that the court retained the power to make superannuation splitting orders even after the respondent's bankruptcy, particularly when the primary orders had not been satisfied. The judge found that Mr Kemp had not complied with the earlier orders for property settlement and costs. Consequently, the court invoked s 79A(1)(c) of the *Family Law Act 1975* to vary the original orders and give effect to the alternative superannuation splitting provisions. The court emphasised its obligation to ensure that parties' rights were ascertained and protected, especially in circumstances where one party had not complied with court directions.

The court ordered that the sum of $45,352.42 be allocated from Mr Kemp's interest in Superannuation Fund A to Ms Wilkinson, and that any splittable payment from that fund to Mr Kemp would be paid to Ms Wilkinson accordingly. Similarly, the costs order of $2,060.00 was also to be satisfied from Mr Kemp's interest in the same superannuation fund. These orders were to take effect from 19 September 2015 and 26 November 2015 respectively, and the trustee of Superannuation Fund A was bound by these orders. The Registrar of the Court was appointed to execute any necessary documents if Mr Kemp refused or neglected to do so.

Orders

Orders of the court

Within three (3) months from 17 June 2015, the respondent, Mr Kemp born … 1966, pay the applicant, Ms Wilkinson born … 1983 the sum of $45,352.42 by way of settlement of property.

Except as otherwise provided for in these Orders:

(a) Each party will be solely entitled, to the exclusion of the other, to all other property including real property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders and that for this purpose bank accounts are deemed to be in the possession of the party whose name appears on the bank’s record thereof, insurance policies are deemed to be in the possession of the owner of the policy, 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 conditions for payment out of such entitlements; and

(b) Each party is to be solely liable for and indemnify the other party against any debts or liabilities in their respective names.

Within three (3) months of 24 August 2015, the respondent is to pay the applicant’s costs as ordered by the Order of 29 April 2014 in the sum of $2,060.00.

All other extant Applications be dismissed.

If Order 1 herein has not been complied with by 18 September 2015 then Orders 6-9 below shall take effect.

That the base amounts of $45,352.42 is allocated, as required by Section 90XT(1)(a) of the Family Law Act 1975, to the applicant out of the interest held by the respondent in Superannuation Fund A.

That whenever a splittable payment within the meaning of Section 90XE of the Act becomes payable to or on behalf of the respondent from his interest in Superannuation Fund A, the trustee shall pay the applicant the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, and make a corresponding reduction in the entitlement the respondent would have had but for these Orders.

That this Order has effect from the operative time.

That the operative time is 19 September 2015.

10.

If Order 3 above has not been complied with by 25 November 2015 then Orders 11-14 shall take effect in the alternative.

11.

That the base amount of $2,060.00 is allocated, as required by Section 90XT(1)(a) of the Family Law Act 1975, to the applicant out of the interest held by the respondent in Superannuation Fund A.

12.

13.

That this Order has effect from the operative time.

14.

That the operative time is 26 November 2015.

15.

That this Order binds the Trustee of Superannuation Fund A.

16.

That the respondent shall do all things necessary and sign all documents necessary to give effect to these Orders. In the event that the respondent refuses or neglects to do all things necessary and sign all documents necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to s.106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the document.

17.

As the Court has found that the respondent has not complied with Order 1 or with Order 3, the provisions Orders 6-9 and of Orders 11-14 apply forthwith.

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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