Clough & Clough

[2007] FamCA 174

FAMILY COURT OF AUSTRALIA

CLOUGH & CLOUGH [2007] FamCA 174

FAMILY LAW – Property - Superannuation

APPLICANT: MRS CLOUGH (aka TRENERRY)

RESPONDENT: MR CLOUGH

FILE NUMBER: HBF 1518 of 1999

DATE DELIVERED: 26 February 2007

PLACE DELIVERED: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 26 February 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Turnbull

COUNSEL FOR THE RESPONDENT: No appearance

Orders

1. That pursuant to Section 79(A) of the Family Law Act 1975 the Order made on the 12^th of July 1999 varied as follows:-

   i.THAT paragraphs 5 and 6 of the Order be discharged.

   ii.THAT the court allocate as required by Section 90MT(4) of the Family Law Act a base amount of $113,720.00 to the wife out of the husband’s interest in the S Personal Superannuation Plan.

   iii.THAT the following order has effect from the operative time;

   iv.THAT pursuant to Section 90MT1(a) of the Family Law Act 1975, whenever the Trustee of S Personal Superannuation Plan makes a splittable payment in respect of the husband’s superannuation interest in S Personal Superannuation Plan (“the Fund”) the wife shall be entitled to be paid by the Trustee the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and that there be a corresponding reduction in the entitlement which the husband would have had in the Fund but for this order;

   v.THAT having been accorded procedural fairness in relation to the making of this order, this order binds the Trustee of S Personal Superannuation Plan;

   vi.THAT the operative time for this order is the date of these orders

   vii.THAT save as it is otherwise provided for in this order, each of the parties relinquish to the other and where necessary transfer to the other any interest they may otherwise have to any monies at banks, savings, shares, investments, motor vehicles, boats and/or real estate or personal property presently registered in the name of or in the possession of the other party inclusive of any superannuation and/or life insurance entitlements and/or choses in action and release the other party from any debt damages or other sums due or alleged to be due by the other party to that party.

   viii.THAT neither the husband nor the wife shall incur in the name of the other any account, debt or other liability and subject to the terms of this Order shall pay and discharge all accounts, debts and other liability incurred by either of them and at all times keep the other indemnified therefrom and from all claims, actions, costs and other expenses in connection therewith.

   ix.THAT each of the parties do all such acts and things and execute all such documents as they may be required to do and execute to give effect to the terms of this order.

   x.THAT the terms of this order be binding on the personal representatives, administrators, executors, heirs and assigns of each of the parties.

2. THAT these proceedings be removed from the list of cases requiring determination.

3. THAT all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same except the letter from S dated 10 November 2006.

4. THAT a copy of the reasons for these orders be taken out and placed on the Court file.

   IT IS CERTIFIED

5. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBF 1518  of 1999

MRS CLOUGH (aka Trenerry)

Applicant

And

MR CLOUGH

Respondent

REASONS FOR JUDGMENT

1. This is an application before me by the wife in relation to orders that were made in this court on 12 July 1999, in particular with regard to order 5 which dealt with superannuation at that time. 

2. The application is not opposed by the respondent former husband, Mr Clough. It is an application to set aside order 5 made that date pursuant to section 79A(1)(b) and/or (c). It also includes the setting aside of order 6.

3. The factual basis upon which the application is made is contained in the affidavit of the wife sworn 2 February 2007, in particular where she observes at paragraph 5:

   Following the making of the order my husband rolled his Commonwealth Superannuation Scheme, reference number […] (PSS Superannuation Policy), into [S] Superannuation Policies.  This of course led to the defeat of the terms of the existing order in that the existing order refers only to the PSS Superannuation and not the [S] Superannuation.  Further, on 19 April 2004, a letter was received from PSS indicating that they were not bound by paragraph 5(d) of the order and a copy of that letter is annexed and marked B.

4. Paragraph 9 of that affidavit goes on to say:

   I need the order to be varied because the existing order in relation to my husband's PSS Superannuation no longer has any force.  As a result of my husband moving the superannuation entitlement to [S], the order in relation to the split of his superannuation entitlement is not enforceable.  As I understand it, the rollover from PSS to [S] occurred because the company he was working for ceased to be a government organisation.  Therefore he could not remain part of the government superannuation scheme.

5. The husband filed an affidavit on 2 February setting out the facts as he understood it which, in all respects, support the assertion of facts raised by the wife. 

6. A court has to be sceptical in terms of applications such as this.  The legislation regarding superannuation splitting includes the Family Law (Superannuation) Act 2001 which provides that property settlements entered into by way of court order or financial agreement prior to 28 December 2002 will miss out on the benefits of the new legislation. 

7. This is set out in sections 5.2, 5.3, 5.4 of the Family (Superannuation) Act 2001 and the policy intention was that there ought to be no retrospectivity in terms of splitting of superannuations that could have had a significant impact on the superannuation industry and, as I understand it, on revenue. 

8. In this case it is clear from material that the time that the order became impracticable be carried out and/or the husband defaulted by transferring the fund occurred in about August 2001 well before the impact of the Family Law (Superannuation) Act coming apparent to the community and to the legal profession.

9. I am satisfied that this is not an endeavour to give retrospective effect to the arrangements that had been put into place and I am satisfied that circumstances have arisen since the order was made in that it is impracticable for orders 5 and 6 to be carried out, and I am satisfied that albeit unintentionally, the husband has defaulted in carrying out his obligations by that rollover from the government superannuation to S.

10. That being the case, I am prepared, as I said, to set aside the orders.  There is clear procedural fairness offered to the trustees of the superannuation fund and I note the letter from the senior administration consultant dated 10 November 2006. 

11. I note the other matters contained in the two affidavits; one of the wife and one of the husband, and I am satisfied in exercising my discretion under section 79 of the Family Law Act that the orders sought by the wife are appropriate.

I certify that the preceding 11 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate:   

Date:  26 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Clough & Clough