Bar and JMR

The Family Court of Australia, in a matter concerning property settlement under section 79 of the Family Law Act 1975, heard an application by the husband (applicant) against the wife (respondent). The central dispute revolved around the accurate valuation of the husband's defined benefit superannuation interest in its growth phase, with the wife appearing on her own behalf and counsel representing the husband. The proceedings were brought to a halt during the hearing to allow for further consideration of the valuation methodology.

The court was required to determine the just and equitable alteration of property interests between the parties, with a particular focus on the valuation of the husband's defined benefit superannuation. This involved assessing the applicability and accuracy of Schedule 2 of the Family Law (Superannuation) Regulations 2001, which prescribes a method for such valuations, and considering whether this method produced a fair outcome in the specific circumstances of the case, especially given potential issues with public sector funds. The court also had to consider the impact of a previous consent order made in 1999, which adjourned the determination of superannuation interests.

Justice Young reasoned that while the Family Law (Superannuation) Regulations 2001 are binding, the expert evidence presented, particularly from Mr W, indicated significant difficulties and potential inaccuracies in applying Schedule 2 to public sector defined benefit funds in the growth phase. The court noted that the Attorney-General's Department and the Family Court itself had acknowledged these limitations, with various public sector funds, including the Emergency Services Superannuation Scheme (ESSS), having lodged applications for scheme-specific valuation methodologies. Given these concerns about the accuracy and fairness of the current valuation method, and the wife's application for an adjournment pending a more appropriate valuation, the court determined that it could not proceed to a final determination without further evidence.

Consequently, the court ordered that the further hearing of all extant applications be adjourned, with the matter to remain part-heard before Justice Young and not to be relisted before 1 May 2005, unless an earlier date was determined by the Court upon application. The parties were directed to obtain an updated expert report from Mr W regarding the valuation of the husband's superannuation entitlement at a time when he considered it appropriate to do so. Additionally, the wife was ordered to pay the husband $300, representing 50% of Mr W's agreed fee for his past reports.