Bestari & Henley (No 3)

In the matter of Bestari & Henley (No 3), the Federal Circuit and Family Court of Australia (Division 1) was tasked with considering the property settlement between Ms Bestari, the applicant, and Mr Henley, the respondent. The parties had reached consent terms for the division of their property, which involved a percentage split contingent on future sales, valuations, and the determination of a third party's property interests. The court was required to decide whether the proposed consent terms, which relied on future events and third-party determinations, were acceptable for finalisation as consent orders.

The court examined whether the terms proposed by the parties constituted an impermissible delegation of the judicial function to third parties, particularly given the reliance on future valuations and the determination of property interests of a third party who was not involved in the proceedings. The court also assessed whether it could be satisfied that the effect of the proposed orders would be just and equitable, given the uncertainty surrounding the future valuation of significant assets. The court found that the proposed terms did not adequately identify legal and equitable interests and relied on future events that were not yet determined, which meant the court could not be satisfied that the orders would be just and equitable.

The court declined to make the proposed orders final, citing the impermissible delegation of the judicial function to third parties and the inability to assess the fairness and equity of the orders due to the reliance on future events and valuations. The court emphasised that it needed to be able to understand the value of the property pool and the obligations of the parties to ensure the orders were just and equitable.

No final orders were made, and the court's decision was recorded to ensure clarity and finality regarding the non-approval of the proposed consent terms.