Byrd and Byrd (No 2)

In the matter of Byrd and Byrd (No 2), Justice Fowler of the Federal Circuit Court of Australia considered an application by the wife to discharge certain interim orders made in August 2010 and to make new orders concerning her property at Sydney Suburb 1. The dispute centred on whether the court retained the power to alter interim property orders prior to a final determination of the parties' property interests under section 79 of the Family Law Act 1975 (Cth).

The primary legal issue before the court was the extent to which interim property orders made under section 79 could be varied or discharged before the final exercise of the court's power. The wife contended that the August 2010 orders were interim and thus capable of alteration, citing authorities such as *Strahan and Strahan* and *Gabel v Yardley*. The husband argued that interim orders were only alterable by way of a final order, a position the court found inconsistent with the cited case law.

Justice Fowler reasoned that the power under section 79 is a single exercise that may be completed through a succession of orders until all property is dealt with. Crucially, the court held that an earlier order, whether made under section 79(6) or section 80(1)(h), remains capable of alteration at any time before the final exercise of the section 79 power. The court noted that the wife had incurred significant expense in anticipation of a specific financial arrangement and that her proposed orders would not prejudice the final determination of property interests. The husband's concession that the wife should retain her Sydney Suburb 1 property, even if the asset pool was less than she asserted, further supported the wife's application.

Accordingly, Justice Fowler ordered the discharge of orders 9 and 10 from the Minute of Order of 4-5 August 2010. Furthermore, for the purposes of the final proceedings, the wife's property at Sydney Suburb 1 was to be included in the Balance Sheet at its unencumbered agreed value, with any mortgage liability secured against it not to be accounted for on the Balance Sheet.