Zemin & Kaba (No 2)

[2023] FedCFamC2F 748

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Zemin & Kaba (No 2) [2023] FedCFamC2F 748

File number(s):

PAC 571 of 2020

Judgment of:

JUDGE STREET

Date of judgment:

24 March 2023

Catchwords:

PROPERTY - PRACTICE AND PROCEDURE - no costs order

Legislation:

Corporations Act 2001 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Division:

Division 2 Family Law

Number of paragraphs:

3

Date of hearing:

24 March 2023

Place:

Sydney

Applicant’s Representative:

Mr J Shaw of Counsel

Solicitor for Applicant:

Sui Juris Lawyers

ORDERS

PAC 571 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS ZEMIN

Applicant

AND:

MR KABA

Respondent

AND:

INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE STREET
DATE OF ORDER:	24 MARCH 2023

THE COURT ORDERS THAT:

1.The matter is transferred to Division 1 of the Federal Circuit and Family Court of Australia pursuant to s 149 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

THE COURT NOTES THAT:

A.The Chief Justice has given permission for the transfer and the Court has given consideration to s 149(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Zemin & Kaba has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE STREET

1. This matter is transferred to Division One of the Federal Circuit and Family Court of Australia, pursuant to s 149 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘FCFCOA Act’). The Court notes that the Chief Justice has given permission for the transfer and that the Court has had regard to the matters identified in s 149(3) of FCFCOA Act. The Court gives reasons for the order.

2. These are proceedings in which the Court made final property orders on 23 December 2022.  Part of the property included orders in relation to a self-managed superannuation trust that had a corporate trustee and appeared to be the owner of property in Victoria.  The Court identified that that property was the subject of steps being taken by the mortgagee and it also appeared that the self-managed superannuation trust may not be compliant with requirements in respect of a superannuation trust.  Accordingly, for reasons that have been published separately, The Court appointed a receiver to the corporate entity for the purpose of ensuring that the self-managed superannuation trust was both compliant and also to give effect to the orders of the Court for the realisation of the property that might then be the subject of appropriate – that is then the subject of orders in respect of splitting.

3. On 16 March 2023 an application was filed, identifying that the corporate entities in fact the subject of – has been deregistered for failure to pay ASIC fees.  The appointed receiver correctly identified that the proposed appointment was invalid and the application has been filed for reinstatement.  This Court, in Division Two, does not have power under the Corporations Act 2001 (Cth) for the making of such a reinstatement order. However, under s 601AH, Division One is a Court within the meaning of s 58AA and has power to make the order in relation to reinstatement of the corporation under the Corporations Act 2001 (Cth). The Court has accordingly considered the matters and had regard to each of the criteria under s 149(3) of the FCFCOA Act and is satisfied that it is in the interests of the administration of justice to transfer this matter to Division One. The Court, in exercising this power, has complied with the internal protocol for supervision from the Chief Justice in that regard.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Date: 19 June 2023