Clough & Clough

In *Clough & Clough*, Benjamin J of the Family Court of Australia considered an application by the wife to vary a previous court order made on 12 July 1999 concerning the division of superannuation. The application was not opposed by the former husband. The wife sought to set aside orders 5 and 6 of the original order, which dealt with her husband's superannuation interest in the Commonwealth Superannuation Scheme (PSS).

The central legal issue was whether the court had the power to vary the original order under section 79A of the *Family Law Act 1975*. Specifically, the court had to determine if circumstances had arisen since the making of the order that rendered it impracticable to carry out, or if the husband had defaulted in his obligations under the order. The wife's application was based on the fact that her husband had rolled his PSS superannuation into a new fund, "[S] Superannuation Policies," after the original order was made. This rollover meant the original order, which specifically referred to the PSS, was no longer enforceable against the new fund.

Benjamin J found that the husband's rollover of his superannuation from the PSS to the [S] fund, which occurred around August 2001, rendered the original orders impracticable to carry out and constituted a default in his obligations. The court noted that this occurred before the full impact of the *Family Law (Superannuation) Act 2001* became apparent, and therefore, the application was not an attempt to give retrospective effect to the legislation. The judge was satisfied that circumstances had arisen since the making of the order that made it impracticable to enforce, and that the husband had, albeit unintentionally, defaulted by transferring the fund. Consequently, Benjamin J exercised his discretion under section 79A of the *Family Law Act 1975* to vary the original order.

The court ordered that the original orders 5 and 6 be discharged. A base amount of $113,720.00 was allocated to the wife from the husband's interest in the S Personal Superannuation Plan. The order further stipulated that whenever the Trustee of the S Personal Superannuation Plan makes a splittable payment in respect of the husband's interest, the wife would be entitled to a calculated portion, with a corresponding reduction in the husband's entitlement. The order was made binding on the Trustee and was to have effect from the date of the new orders. The parties were also to relinquish any further interests in each other's assets and liabilities, with provisions for indemnification.