Claydon and Claydon
[2018] FCCA 1660
•11 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLAYDON & CLAYDON | [2018] FCCA 1660 |
| Catchwords: FAMILY LAW – Property – Section 79A application to vary or set aside judgment – parties agreed to value of shares at time of trial – shares had increased in value as at date of delivery of judgment – whether grounds are satisfied for varying or setting aside judgment – application dismissed. |
| Legislation: Family Law Act 1975, ss.79(1)(a), 79(1)(b), 79A, 90MT(1), 90MT(2). Evidence Act 1995, s.55 Family Law Rules 2004, rr.13.01, 13.02, 13.04, 13.15 Family Law (Superannuation) Regulations 2001, r.22 |
| Cases cited: Barker & Barker (2007) 36 Fam LR Simon & Michel [2010] FMCAfam 1055 Stone & Stone [2013] FamCA 270 Waterman & Waterman [2017] FamCAFC 23 |
| Applicant: | MS CLAYDON |
| Respondent: | MR CLAYDON |
| File Number: | BRC 7362 of 2013 |
| Judgment of: | Judge Egan |
| Hearing date: | 11 June 2018 |
| Date of Last Submission: | 11 June 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 11 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hackett |
| Solicitors for the Applicant: | Evans & Company Family Lawyers |
| Counsel for the Respondent: | Mr North QC |
| Solicitors for the Respondent: | Hopgood Ganim Lawyers |
ORDERS
That the Initiating Application filed on 28 April 2017 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Claydon & Claydon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 7362 of 2013
| MS CLAYDON |
Applicant
And
| MR CLAYDON |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
I have before me an initiating application filed on behalf of the wife on 28 April 2017. The application by paragraph 1 seeks that orders of the Court made by his Honour Judge Jarrett on 7 February 2017 be varied/amended pursuant to Section 79A of the Family Law Act 1975 (Cth) (“the FLA”). The application in that regard firstly is based upon varying the price at which the shares of a company were to be included for the purposes of the calculation of the non-superannuation asset pool, and then the calculation of the superannuation entitlements of the husband and the wife.
The factual scenario is that each of the husband and the wife were directors of a company called Company W Pty Ltd which was the trustee of a self-managed superannuation fund. That fund had ownership of 32,258 shares in a private company called Company X Pty Ltd. That company is associated with a brand called “omitted”. The ownership of those shares was the subject of consideration by His Honour Judge Jarrett in Federal Circuit Court property adjustment proceedings commenced in this Court.
The trial of those proceedings proceeded in late July and early August 2015. His Honour handed down judgment in that matter on 7 February 2017. It transpired that after August 2015, but before judgment was handed down in February 2017, the husband received notice of a share buy-back offer in respect of these shares in the amount of $13.20 per share. At the trial, it was agreed between the parties via their legal representatives, and conveyed to His Honour, that the value of $10 per share was an appropriate agreed value of such shares for the purpose of the proceedings. It further transpires that, after judgment, a second share buy-back offer in the amount of $15.51 was made in November 2017.
The husband was called to give evidence and was cross-examined by Mr Hackett of counsel for the wife. During the course of his cross-examination, he openly admitted that he had deliberately withheld from the wife his knowledge of the increased share buyback offers over and above the $10 value agreed to by both parties at trial. He said that he did not believe that there was an obligation on his part to do so, the question for consideration having already been the subject of a binding agreement. The husband filed a response initially seeking that the interim orders sought in the initiating application be dismissed. Mr North of Senior Counsel today sought leave to amend the response by adding, in the alternative to that application, the following application:
In the event the Court is persuaded to vary or set aside the order of Jarrett J, that the order be set aside and that the proceedings be otherwise adjourned in order to determine what order, if any, ought be made pursuant to section 79 upon a rehearing of the trial.
Section 79A of the Family Law Act provides as follows:
S.79A - Setting aside of orders altering property interests
(1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
(e) a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage;
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
(1A) A court may, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
(1AA) For the purposes of paragraph (1)(d), a person has caring responsibility for a child if:
(a) the person is a parent of the child with whom the child lives; or
(b) a parenting order provides that:
(i) the child is to live with the person; or
(ii) the person has parental responsibility for the child.
(1B) An order varied or made under subsection (1) or (1A) may, after the death of a party to the marriage in which the order was so varied or made, be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(1C) Where, before proceedings under this section in relation to an order made under section 79 are completed, a party to the marriage dies:
(a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;
(b) if the court is of the opinion:
(i) that it would have exercised its powers under subsection (1) or (1A) in relation to the order if the deceased party had not died; and
(ii) that it is still appropriate to exercise its powers under subsection (1) or (1A) in relation to the order;
the court may vary the order, set the order aside, or set the order aside and make another order under section 79 in substitution for the order so set aside; and
(c) an order varied or made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(2) In the exercise of its powers under subsection (1), (1A) or (1C), a court shall have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested.
(3) In this section, a reference to an order made by a court under section 79 includes a reference to an order made by a court under section 86 of the repealed Act.
(4) For the purposes of this section, a creditor of a party to the proceedings in which the order under section 79 was made is taken to be a person whose interests are affected by the order if the creditor may not be able to recover his or her debt because the order has been made.
(5) For the purposes of this section, if:
(a) an order is made by a court under section 79 in proceedings with respect to the property of the parties to a marriage or either of them; and
(b) either of the following subparagraphs apply to a party to the marriage:
(i) when the order was made, the party was a bankrupt;
(ii) after the order was made, the party became a bankrupt;
the bankruptcy trustee is taken to be a person whose interests are affected by the order.
(6) For the purposes of this section, if:
(a) a party to a marriage is a bankrupt; and
(b) an order is made by a court under section 79 in proceedings with respect to the vested bankruptcy property in relation to the bankrupt party;
the bankruptcy trustee is taken to be a person whose interests are affected by the order.
(7) For the purposes of this section, if:
(a) an order is made by a court under section 79 in proceedings with respect to the property of the parties to a marriage or either of them; and
(b) either of the following subparagraphs apply to a party to the marriage:
(i) when the order was made, the party was a debtor subject to a personal insolvency agreement;
(ii) after the order was made, the party became a debtor subject to a personal insolvency agreement;
the trustee of the agreement is taken to be a person whose interests are affected by the order.
The applicant wife in these proceedings has relied upon section 79A(1)(a) and (b) for the purposes of the initiating application.
As to section 79(1)(a), it is submitted on behalf of the wife that there was at all times an ongoing obligation on the part of the husband to make disclosure, pursuant to rule 13.01 of the Family Law Rules 2004. Rules 13.01 to 13.04, relevantly, provide as follows:
R.13.01 - General duty of disclosure
(1) Subject to subrule (3), each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner.
Note: Failure to comply with the duty may result in the court excluding evidence that is not disclosed or imposing a consequence, including punishment for contempt of court. This Chapter sets out a number of ways that a party is either required, or can be called upon, to discharge the party's duty of disclosure, including:
(a) disclosure of financial circumstances (see Division 13.1.2);
(b) disclosure and production of documents (see Division 13.2.1); and
(c) disclosure by answering specific questions in certain circumstances (see Part 13.3).
(2) The duty of disclosure starts with the pre-action procedure for a case and continues until the case is finalised.
Note: The duty of disclosure applies to a case guardian for a child and a person with a disability (see subrule 6.13(2)).
(3) This rule does not apply to a respondent in an application alleging contravention or contempt.
R.13.02 Purpose of Division 13.1.2
(1) This Division sets out the duty of disclosure required by parties to a financial case.
(2) This Division does not apply to a party to a property case who is not a party to the marriage or de facto relationship to which the application relates, except to the extent that the party's financial circumstances are relevant to the issues in dispute.
R.13.03 Definition
In this Division:
“party to a financial case” includes a payee or other respondent to an enforcement application.
R.13.04 Full and frank disclosure
(1) A party to a financial case must make full and frank disclosure of the party's financial circumstances, including:
(a) the party's earnings, including income that is paid or assigned to another party, person or legal entity;
(b) any vested or contingent interest in property;
(c) any vested or contingent interest in property owned by a legal entity that is fully or partially owned or controlled by a party;
(d) any income earned by a legal entity fully or partially owned or controlled by a party, including income that is paid or assigned to any other party, person or legal entity;
(e) the party's other financial resources;
(f) any trust:
(i) of which the party is the appointor or trustee;
(ii) of which the party, the party's child, spouse or de facto spouse is an eligible beneficiary as to capital or income;
(iii) of which a corporation is an eligible beneficiary as to capital or income if the party, or the party's child, spouse or de facto spouse is a shareholder or director of the corporation;
(iv) over which the party has any direct or indirect power or control;
(v) of which the party has the direct or indirect power to remove or appoint a trustee;
(vi) of which the party has the power (whether subject to the concurrence of another person or not) to amend the terms;
(vii) of which the party has the power to disapprove a proposed amendment of the terms or the appointment or removal of a trustee; or
(viii) over which a corporation has a power mentioned in any of subparagraphs (iv) to (vii), if the party, the party's child, spouse or de facto spouse is a director or shareholder of the corporation;
(g) any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity mentioned in paragraph (c), a corporation or a trust mentioned in paragraph (f) that may affect, defeat or deplete a claim:
(i) in the 12 months immediately before the separation of the parties; or
(ii) since the final separation of the parties; and
(h) liabilities and contingent liabilities.
(2) Paragraph (1)(g) does not apply to a disposal of property made with the consent or knowledge of the other party or in the ordinary course of business.
(3) In this rule:
"legal entity " means a corporation (other than a public company), trust, partnership, joint venture business or other commercial activity.
Note: The requirements in this rule are in addition to the requirements in rules 12.02 and 12.05 to exchange certain documents before a conference in a property case.
Rule 13.01(2) is relied upon by the wife. It is submitted that the duty of disclosure, in this case, started with the pre-action procedure for a case and continued until the case was finalised, thereby requiring and compelling the husband to file an updated financial statement, setting out the increased offer for the shares, prior to the handing down of judgment by Judge Jarrett. In addressing that submission, Mr North SC directed the Court to Rule 13.15 of the Family Law Rules 2004. That rule, relevantly, provides as follows:
R.13.15 Undertaking by party
(1) A party (except an independent children's lawyer) must file a written notice:
(a) stating that the party:
(i) has read Parts 13.1 and 13.2 of these Rules; and
(ii) is aware of the party's duty to the court and each other party (including any independent children's lawyer) to give full and frank disclosure of all information relevant to the issues in the case, in a timely manner;
(b) undertaking to the court that, to the best of the party's knowledge and ability, the party has complied with, and will continue to comply with, the duty of disclosure; and
(c) acknowledging that a breach of the undertaking may be contempt of court.
(2) A party commits an offence if the party makes a statement or signs an undertaking the party knows, or should reasonably have known, is false or misleading in a material particular.
Penalty: 50 penalty units.
Note: Subrule (2) is in addition to the court's powers under section 112AP of the Act relating to contempt and the court's power to make an order for costs.
(3) If the court makes an order against a party under section 112AP of the Act in respect of a false or misleading statement mentioned in subrule (2), the party must not be charged with an offence against subrule (2) in respect of that statement.
(4) A notice under subrule (1) must comply with subrule 24.01(1) and be as follows:
'This Notice is filed in accordance with rule 13.15 of the Family Law Rules 2004 .
I [ insert name ]:
(a) have read Parts 13.1 and 13.2 of the Family Law Rules 2004 ;
(b) am aware of my duty to the court and to each other party (including any independent children's lawyer) to give full and frank disclosure of all information relevant to the issues in the case, in a timely manner; and
(c) undertake to the court that, to the best of my knowledge and ability, I have complied with, and will continue to comply with, my duty of disclosure.
I understand the nature and terms of this undertaking and that if I breach the undertaking, I may be guilty of contempt of court.
... ... ... ... ... ... ... ... ... ... ... ... ... ...
( signature of person making statement )
... ... ... ... ... ... ... ... ... ... ... ... ... ...
( full name of person making statement )
... ... ... ... ... ... ... ... ... ... ... ... ... ...
( date of signature )
... ... ... ... ... ... ... ... ... ... ... ... ... ...
( signature of witness )
... ... ... ... ... ... ... ... ... ... ... ... ... ...
( full name of witness )
... ... ... ... ... ... ... ... ... ... ... ... ... ...
( date of signature )
Note 1: For the consequences of failing to comply with this rule, see rule 11.02.
Note 2: A party who breaches an undertaking may be found guilty of contempt of court and may be punished by imprisonment (see section 112AP of the Act).
It is to be noted that the undertaking given to the Court, pursuant to 13.15(1)(b), must relate back to the requirement to give full and frank disclosure of all information relevant to the issues in the case. Mr North SC submitted that upon agreement being reached by the parties, at trial, that the issue of the valuation of the shares had been determined as being $10 per share, and that it was therefore no longer a relevant issue requiring the filing of an updated statement of financial circumstances. In support of that proposition, Mr North referred me to the definition of what was relevant evidence, under Section 55 of the Evidence Act 1995 (Cth), which section applies as follows:
S.55 Relevant Evidence
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(a failure to adduce evidence.
There is a long line of authority, helpfully referred to in the outline of submissions relied upon by Mr Hackett, on behalf of the wife, which addresses the issue of a party’s requirement to make full disclosure, in a timely way, on an ongoing basis. I refer to the judgment of the Full Court of the Family Court of Australia in the case of Waterman & Waterman [2017] FamCAFC 23, and the cases cited therein, in that regard. I also refer to the other cases cited by Mr Hackett, including Stone & Stone [2013] FamCA 270; Barker & Barker (2007) 36 Fam LR and Simon & Michel [2010] FMCAfam 1055. None of those cases directly concern the factual scenario before me. However, in the case of Barker v Barker, reference is made, at paragraphs [121] and [122] of the joint judgment of the Court. Those paragraphs are as follows:
[121] We acknowledge the reality of the process by which parties reach agreement about many issues, and in particular about valuations, leading to consent orders. Where a single expert is employed, the valuation may be concluded months before a settlement is reached. There are many factors that may intervene during this period. The opinion expressed in the single expert report will often be the subject of negotiation, either through the formal intervention of the Registrar at a Conciliation Conference, some other formal intervention, or simply negotiation between the parties and their respective solicitors. During the intervening period the normal commerce of life will continue. Sales of properties, whether they be metropolitan or rural and regional, will continue and may affect the value of relevant properties. It would be incomprehensible to expect that in this arena, that valuations will always be updated on a regular basis.
[122] There will thus be many cases in which an order will be made, by consent or otherwise, based upon an agreed valuation which has been prepared many months earlier. There may be factors in the intervening period which have affected the value so agreed. Unless there is some particular act which impugns the process by which the orders were obtained, the mere effluxion of time and the consequent changes in the market during that period, whether they be upward or downward, will not of themselves create an injustice, nor require either of the parties to make further investigations of value if they choose not to do so.
It is clear, from a reading of those two paragraphs, that the Court was there referring to agreements reached between parties prior to and during the course of proceedings, which constitute an agreed valuation of matrimonial property. The Court has recognised that effluxion of time and change in market value upward or downward will not, themselves, create an injustice, or which requires either party to update their financial position. In a practical sense, there will almost invariably be a time lag between the reserving of a judgment and the handing down of a judgment. The judicial process is almost invariably assisted by parties reaching early agreement, in certain terms, as to the valuation of jointly owned assets or assets which are properly to be taken into consideration for the purpose of the making of property adjustment orders. The agreement reached between the parties, in this case, was an agreement that fell into that category. Who was to know whether the value of the shares in the company which owned (brand omitted) would increase in value or decrease in value, at the time that the agreement was reached?
One factor which must be taken into account in that regard is that it is at the election of each of the parties to the proceedings as to whether they will or will not enter into a binding bargain or agreement at trial, as to the valuation of certain matrimonial assets. There is an element of each party entering into such agreements only after an opportunity for a due diligence exercise has been afforded to them, such that they have had the opportunity to make an informed decision about whether they will or will not reach any agreement as to the value of any such matrimonial property. Kennedy v Thorne [2016] FamCAFC 189.
A significant consideration is also as to whether parties to legal proceedings have entered into agreements fixing specific property values in circumstances where those parties were legally represented at the time of doing so. Legal representation is a significant factor weighing against the drawing of an adverse inference in this case in respect of any alleged non-disclosure by the husband. It is also, in my view, a factor which ought to be taken into account when assessing whether the agreement, in relation to the valuation, was enforceable or not. The fact of legal representation on both sides in this case afforded to each party some comfort that their interests were being protected in relation to matters such as agreement being reached as to the values of respective items of matrimonial property. The parties’ respective legal representatives could have advised the parties not to enter into an agreement as to value where such agreement was not a conditional one, in the sense that if the value of the asset was to increase or decrease by a certain percentage, then there was to be a reappraisal of the value of the asset, such reappraisal necessarily leading to the presiding judge being informed of that fact. A rise and fall clause in a contract is one such example where parties hedge their bets.
In this case, the agreement was unconditional. There was no provision to the agreement about the shares being valued at $10 per share, subject to a right on the part of either party to resile, should either the shares increase or decrease in value to their respective detriment. And once agreements are made, it has long been held that courts are loathe to disturb agreements entered into, at arm’s length, between parties having the capacity and competence to do so.
It is also not insignificant that Section 81 of the FLA imposes upon a Court the duty to end financial relations between the parties. Section 81 provides as follows:
In proceedings under this Part, other than proceedings under section 78 or proceedings with respect to maintenance payable during the subsistence of a marriage, the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.
In my view, should it be the case that unconditional agreements as to value reached in circumstances such as the present were to be the subject of ongoing forensic examination as to the exactitude of value, in each case or, if there was to be an ongoing judicial process involving an adjudication as to the propriety of the methodology by which a party subjectively agreed to a valuation, then there would be ongoing litigation on a daily basis, something which, as a matter of public policy, ought not to be sanctioned.
So for those legal reasons, I reject the application in so far as it was based upon the provisions of section 79A(1)(a) of the FLA. I do not consider that there has been, in the circumstances, a suppression of evidence or that there is any other circumstance which, on an application made pursuant to section 79A of the FLA, justifies the granting of the application.
Also, in a practical sense, had the husband been required to make disclosure of the increased offer in respect of the shares, a necessary consequence of that requirement would have been that the wife, if she considered that she had been monetarily disadvantaged, would have been required to seek a reopening of the trial – something which would prolong the litigation between the parties rather than bring it to an end.
I do not consider that the circumstances of this case constitute the exceptional circumstances required to reopen the hearing before the handing down of judgment. Indeed, had the question of the valuation of the shares been the subject of a reopening application, conceivably, the valuation of other assets could also have been brought into play and questioned, thereby further complicating and extending the litigation process.
The second ground on which the wife seeks to set aside or vary the order made by Judge Jarrett is based upon section 79A(1)(b). It is submitted that it was impracticable for a part of the order to be carried out, because to do so would offend the relevant superannuation regulations. In that regard, section 90MT(2) of the Family Law Act FLA provides that before a Court makes a splitting order, as countenanced by section 90MT(1) of the Act, the court must make a determination of the value of the interest by such method as the Court considers appropriate. Section 90MT is as follows:
S.90MT Splitting order
(1) A court, in accordance with section 90MS, may make the following orders in relation to a superannuation interest (other than an unsplittable interest):
(a) if the interest is not a percentage‑only interest—an order to the effect that, whenever a splittable payment becomes payable in respect of the interest:
(i) the non‑member spouse is entitled to be paid the amount (if any) calculated in accordance with the regulations; and
(ii) there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the order;
(b) an order to the effect that, whenever a splittable payment becomes payable in respect of the interest:
(i) the non‑member spouse is entitled to be paid a specified percentage of the splittable payment; and
(ii) there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the order;
(c) if the interest is a percentage‑only interest—an order to the effect that, whenever a splittable payment becomes payable in respect of the interest:
(i) the non‑member spouse is entitled to be paid the amount (if any) calculated in accordance with the regulations by reference to the percentage specified in the order;
(ii) there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the order;
(d) such other orders as the court thinks necessary for the enforcement of an order under paragraph (a), (b) or (c).
(2) Before making an order referred to in subsection (1), the court must make a determination under paragraph (a) or (b) as follows:
(a) if the regulations provide for the determination of an amount in relation to the interest, the court must determine the amount in accordance with the regulations;
(b) otherwise, the court must determine the value of the interest by such method as the court considers appropriate.
(2A) The amount determined under paragraph (2)(a) is taken to be the value of the interest.
(3) Regulations for the purposes of paragraph (2)(a) may provide for the amount to be determined wholly or partly by reference to methods or factors that are approved in writing by the Minister for the purposes of the regulations.
(4) Before making an order referred to in paragraph (1)(a), the court must allocate a base amount to the non‑member spouse, not exceeding the value determined under subsection (2).
Note: The base amount is used to calculate the entitlement of the non‑member spouse under the regulations.
Mr Hackett, on behalf of the wife, submitted that the Court must determine the amount, in relation to certain superannuation benefits, at the time of the making of the court order, pursuant to Regulation 22 of the Family Law (Superannuation) Regulations 2001.
R.22 Determination of amount in relation to certain superannuation interests
(1) Subject to subregulation (2), the court must determine an amount in relation to the superannuation interest at the relevant date:
(a) if the interest is in the growth phase at the relevant date--in accordance with Division 5.1; and
(b) if the interest is in the payment phase at the relevant date--in accordance with Division 5.2.
(2) Subregulation (1) does not apply if the superannuation interest is:
(a) a small superannuation accounts interest; or
(b) an interest in a self managed superannuation fund; or
(c) an interest in a regulated superannuation fund in relation to which the trustee of the fund has, under section 1017B of the Corporations Act 2001 (as modified, if necessary, as set out in Part 10 of Schedule 10A to the Corporations Regulations 2001 ), given notice to each member of the fund that the fund is to be reconstructed or terminated.
Note 1: See regulation 24 in relation to the determination of an amount in relation to a small superannuation accounts interest.
Note 2: The court must determine an amount in relation to a superannuation interest of the kind mentioned in paragraph (2)(b) or (c) by such method as it considers appropriate--see paragraph 90MT(2)(b) of the Act.
However, that regulation is subject to sub regulation 2. Sub regulation 2 provides that sub regulation 1 does not apply if the superannuation interest is in respect of an interest in a self-managed superannuation fund, as was the case here. Mr North SC submitted that Regulation 22(2)(b) of the Family Law (Superannuation) Regulations 2001 precluded the argument of the wife, in that regard, being accepted. In the circumstances, and as a matter of construction, I find that because it was a self-managed superannuation fund, the argument fails.
I am also of the view that once parties to litigation arrive at agreements, as in this case relating to the valuation of an asset, that it is only reasonable to assume that they fashioned submissions as made and adduced evidence presented during the course of that litigation, based upon the agreements that they have arrived at during the course of such litigation. They have relevantly changed their positions, and arguably acted to their detriment, when reaching such agreements. To that extent, the parties should not be able to resile from agreements freely entered into and, indeed, in my view, are estopped from doing so. For all of those reasons, I dismiss the wife’s application.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Egan
Date: 10 July 2018
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