DABNETE & BROT

[2014] FamCA 280

FAMILY COURT OF AUSTRALIA

DABNETE & BROT [2014] FamCA 280

FAMILY LAW – ENFORCEMENT – Where the applicants seek to enforce paragraph 1.7 of the orders made on 30 June 1998 – Where they assert that that order obliges the wife to pay anything she receives from SA Police Superannuation to the husband’s estate – Where the husband’s entitlement to superannuation ceased upon his death and the pension and the lump sum that the wife became entitled to is her entitlement and not the husband’s – Application dismissed.

FAMILY LAW – SECTION 79A(1) – Where in the alternative the applicants seek to have the order set aside or varied pursuant to s 79A(1) of the Family Law Act 1975 (Cth) – Where this court has the jurisdiction to hear and determine the application – Where the circumstances relied upon took place after the orders were made – Where there is no miscarriage of justice by reason of any other circumstance (s 79A(1)(a)) – Where it is not impracticable for the order to be carried out (s 79A(1)(b)) – Application dismissed.

FAMILY LAW – REVIEW – Where the applicants seek to extend the time to review the exercise of power by the registrar on 30 June 1998 – Where there are adequate reasons for the delay – Where there are substantial issues to be tried – Where there is prejudice to both parties if an extension of time is/is not granted – Where the interests of justice require that the application be granted – Time extended.

FAMILY LAW – PROPERTY SETTLEMENT – Where the issue of property settlement between the parties is being considered afresh – Where the wife is entitled to a pension – Where the capital value of the pension can be calculated and included in the schedule of assets of the parties – Where contributions up to separation and the making of the consent orders can be treated as equal – Where thereafter the husband made the greater financial contributions – Where the contributions of the husband/estate should be assessed at 52.5 per cent and the contributions of the wife assessed at 47.5 per cent – Where there should be no adjustment pursuant to s 75(2) factors – Orders made in favour of the husband’s estate.

Family Law Act 1975 (Cth) – s 37A(9), s 75(2), ss 79A(1)(a) and (b), s 79(8), s 105(1)
Police Superannuation Act 1990 (SA) – ss 32, 35, 42, 45

Family Law Rules 2004 (Cth) – r 18.08, r 18.10
Police Superannuation Regulations 2002 (SA) – reg 6

Barker and Barker (2007) FamCA 13
Bigg & Suzi (1998) FLC 92-799
Casey & Braione-Howard and DFRDB Authority (2005) FLC 93-219
Clifton and Stuart (1991) FLC 92-194
Dowdell & Public Trustee of the Northern Territory [2007] FamCA 1276
Gallo v Dawson (1990) 93 ALR 479
Gilbert, C.A. v Estate of Gilbert, R. G. (1990) FLC 92-125
La Rocca & La Rocca (1991) FLC 92-222
Law-Smith & Seinor (1989) FLC 92-050
Molier & Van Wyk (1980) FLC 90-911
Public Trustee (as executor of the estate of Gilbert) v Gilbert (1991) FLC 92-211
Rohde and Rohde (1984) FLC 91-592
Stanford v Stanford (2012) FLC 93-518
Suiker & Suiker (1993) FLC 92-436

APPLICANTS: Ms Dabnete and Mr Dabnete (as Executors of the Estate of Mr Brot (Deceased))

RESPONDENT: Ms Brot

FILE NUMBER: ADC 2407 of 2011

DATE DELIVERED: 2 May 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATES: 29, 30 & 31 October 2012, 12 March 2013,
18 December 2013, and
11 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Ms Pyke QC

SOLICITOR FOR THE APPLICANTS: Treloar & Treloar

COUNSEL FOR THE RESPONDENT: Mr Daenke

SOLICITOR FOR THE RESPONDENT: Andersons Solicitors

Orders

1. The application seeking enforcement of paragraph 1.7 of the orders made on

   
   

   30 June 1998 be dismissed.

2. The alternative application seeking that the said orders be varied or set aside pursuant to s 79A(1)(a) or (b) of the Family Law Act 1975 (Cth) be dismissed.

3. The time to file an application seeking to review the exercise of power by the Registrar on 30 June 1998 be extended nunc pro tunc to 30 June 2011.

4. As a result of reviewing the exercise of power by the registrar the orders made on 30 June 1998 be confirmed and remain in place save and except that there be a further order that within two [2] calendar months of the date of these orders the wife do pay to the executors of the estate of Mr Brot (deceased) on behalf of the estate the sum of EIGHTY TWO THOUSAND AND SIXTY SEVEN DOLLARS [$82,067].

5. All applications be removed from the pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dabnete & Brot has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2407 of 2011

Ms Dabnete and Mr Dabnete (as Executors of the Estate of Mr Brot (Deceased))

Applicants

And

Ms Brot

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 30 June 2011 the legal personal representatives of the estate of Mr Brot (deceased) filed an Initiating Application seeking the following orders:

   1.By way of enforcement of the provision of para. 1.7 of the orders made herein on 30 June 1998:

   a.the wife do all such things as may be necessary to commute to a lump sum the maximum entitlement she may have arising out of her spouse claims to the husband’s superannuation entitlement with the Police Superannuation Fund in accordance with the provisions of the Police Superannuation Act 1990 (the “Act”) and do forthwith pay such sum to the legal personal representatives of the husband; and

   b.that the wife do pay such periodic payment or pension entitlement she may receive from the Police Superannuation Fund in accordance with the provisions of the Act to the legal personal representatives of the husband’s estate forthwith upon such sums being received by her.

   In the alternative:

   c.that the wife do cause to be paid to the legal personal representatives of the husband’s estate such sum as represents the value a duly qualified actuary may calculate as the lump sum value of the Police Superannuation Pension Entitlement payable to the wife in accordance with the provisions of the Act.

   2.        In the alternative:

   a.that the legal personal representatives of the estate of the late husband be granted leave to review out of time the decision and order of a Registrar made herein on 30 June 1998.

   b.that the said order of the 30 June 1998 be varied to include orders in addition:

   i.the wife do all such things as may be necessary to commute to a lump sum the maximum entitlement she may have arising out of her spouse claims to the husband’s superannuation entitlements with the Police Superannuation Fund in accordance with the provisions of the Police Superannuation Act 1990 (the “Act”) and do forthwith pay such sum to the personal legal representatives of the husband;

   ii.that the wife do pay such periodic payment or pension entitlement she may receive from the Police Superannuation Fund in accordance with the provisions of the Act to the legal personal representatives of the husband’s estate forthwith upon such sums being received by her.

   In the alternative;

   iii.that the wife do cause to be paid to the legal personal representatives of the husband such sum as a duly qualified actuary may calculate as the lump sum value of the Police Superannuation Pension Entitlement payable to the wife in accordance with the provisions of the Act.

   3.        In the further alternative

   a.that the order made herein on 30 June 1998 be varied or set aside pursuant to s.79A(1)(a) or (b) of the Family Law Act and that:

   i.the wife do all such things as may be necessary to commute to a lump sum the maximum entitlement she may have arising out of her spousal claims to the husband’s superannuation entitlement with the Police Superannuation Fund in accordance with the provisions of the Police Superannuation Act 1990 (the “Act”) and do forthwith pay such sum to the personal legal representatives of the husband; and

   ii.that the wife do pay such periodic payment or pension entitlement she may receive from the Police Superannuation Fund in accordance with the provisions of the Act to the legal personal representatives of the husband’s estate forthwith upon such sums being received by her.

   In the alternative,

   iii.that the wife do cause to be paid to the legal personal representatives of the husband such sum as a duly qualified actuary may calculate as the lump sum value of the Police Superannuation Pension Entitlement payable to the wife in accordance with the provisions of the Act.

   In the further alternative,

   iv.the wife do pay to the legal personal representatives of the husband such further or other lump sum as the Court may deem just and equitable.

2. On 17 November 2011 the wife filed a Response to the Initiating Application seeking that it be dismissed.

3. I note that in the Initiating Application the legal personal representatives also sought an interim order that they be “substituted for the husband in these proceedings”.  For some unknown reason that order, which was an appropriate order to make in the circumstances, was not made, and to regularise the position I made that order by consent on 30 October 2012.

4. In relation to the final orders sought, I observe that there was no actuarial evidence presented which would enable me to make the alternative orders sought in paragraphs 1.c, 2.b.iii, or 3.a.iii.  Indeed, nothing whatsoever was said about the application for these orders in any written or oral submissions, and when I relisted the matter on 18 December 2013 to raise this and other issues, no application was made to reopen the case to present such evidence.  Thus at this point I proceed on the basis that these orders are not pursued.

5. Further, in relation to the final orders sought in paragraphs 3.a.iv (which was the alternative order to paragraph 3.a.iii) nothing was put and no evidence was presented as to the basis on which such an order should be made.  Thus I propose to ignore it.

6. I also note that although the consent orders were as to both property settlement and spousal maintenance, it is only the property settlement aspect which is sought to be addressed in these proceedings. Indeed, a spousal maintenance order cannot be the subject of a s 79A(1) application.

7. It is convenient to mention at this point that as a result of the lack of evidence and submissions as to what property orders should be put in place in the event that either the court found that s 79A(1)(a) or (b) of the Family Law Act 1975 (Cth) (“the Act”) was satisfied, and it was appropriate to vary or set aside the consent property settlement orders and make orders, or an order, in substitution therefor, or the power exercised by the Registrar could be reviewed and either a new order for property settlement made or the existing order varied, I relisted the matter on 18 December 2013 and raised the following three issues:

   a)whether there had been any response to the request to the Police Superannuation Board to extend the time for the wife to apply to commute part of the pension payable to her to a lump sum, and if not, whether a further joint request on behalf of both parties should be made;

   b)whether an enquiry could be made of the Board as to the effect on the current arrears of the pension if commutation took place; and

   c)in the circumstance that no superannuation splitting order is available in relation to the wife’s entitlements, and in the absence of an actuarial valuation of the pension, how should the pension be treated; as “property” or as “income”.  Further, given that if 50 per cent of the pension is commuted the lump sum payable is $169,776, is it open to proceed on the basis that the whole pension has a capital value of $339,552.

8. Both counsel indicated that they would seek instructions and consider these issues.  Accordingly, the hearing was adjourned and ultimately resumed on

   
   

   11 March 2014.  At that hearing the court was told by the wife’s counsel that the Board had still not responded to the earlier request to extend the time to commute part of the pension, that the wife was not prepared to join in any further request to the Board, and nor was she prepared to join in an enquiry of the Board as to the impact of commutation on the arrears of the pension currently accrued.  As to the third issue, Mr Daenke’s instructions were in effect not to make any submissions.

9. For Ms Pyke QC’s part, on behalf of the estate, there was no point in pursuing the Board any further unless it was by way of a joint request, and thus both counsel invited the court to conclude the matter on the basis of the evidence and the submissions that had previously been made.  I observe though that over the course of these further hearings Ms Pyke QC did not take objection to adopting the figure of $339,552 as the capital value of the pension, or proceeding on the basis that if 50 per cent of the pension was commuted the arrears of the pension would be reduced by one half.

10. I will return to these issues where appropriate later in these reasons.

Factual Background

1. The husband was born in 1958, and the wife was born in 1957.

2. The husband and wife married in 1983 and they separated on

   
   

   13 November 1997.  They did not resume cohabitation after separation but they were never divorced.

3. On 30 June 1998 final orders for property settlement and spousal maintenance were made by consent between the parties.  Those orders were made by a Registrar of the court and they were as follows:

   1.That in full settlement of any claim which either party may have for settlement of property, alteration of interests in property or spousal maintenance (past, present or future):

   1.1That the wife do within thirty days of the date of this order transfer to the husband all her estate and interest in the property situated at and known as [B Street, Suburb C] being the whole of the land comprised in Certificate of Title Register Book Volume … Folio … together with all improvements thereon (hereinafter referred to as “B Street”) and do execute a Memorandum of Transfer in registrable form forthwith upon the same having been tendered to the wife.

   1.2That contemporaneously with and conditional upon the transfer as provided in paragraph 1.1 hereof the husband do pay to the wife by payment to [D Lawyers] Trust Account on behalf of the [sic] the sum of $72,000.00.

   1.3That in default of payment of the sum referred to in paragraph 1.2 hereof the husband do pay interest on any unpaid balance at the rate of 10 per centum per annum and should such default continue for a period of more than two months [B Street] shall be sold and the net proceeds of sale thereof shall be divided as to the amount owing to the wife pursuant to paragraph 1.2 hereof together with all interest accrued thereon and the costs of and incidental to any application to this Honourable Court for sale of the said property and as to the balance thereof to the husband.

   1.4The husband do assume and discharge to the exoneration of the wife all rates taxes and outgoings in respect of B Street.

   1.5That within seven days of the payment to the wife of the sum referred to in paragraph 1.2 hereof the wife do cause to be delivered to the husband the [European] motor vehicle by delivering the same to [B Street] and leaving at such premises the house and car keys for the said motor vehicle.

   1.6That henceforth, subject to these orders, the real property and all personalty in the possession of the wife including without limiting the generality of the foregoing the wife’s savings, superannuation entitlements, long service leave entitlements, life insurances, shares and investments and any furniture, furnishings and effects in the possession of the wife shall vest absolutely in the wife free of all further claim or demand or right or entitlement of the husband.

   1.7That henceforth, the real property and all personalty in the possession of the husband including without limiting the generality of the foregoing the husband’s savings, superannuation entitlements, long service leave entitlements, life insurances, shares and investments and any furniture, furnishings and effects in the possession of the husband and including the [motor vehicle] shall vest absolutely in the husband free of all further claim or demand or right or entitlement of the wife.

   1.8That it be a condition of these orders that if either party shall refuse or neglect to execute any Memorandum of Transfer or any other document necessary to give effect to the terms hereof in the proper form within seven days after the same shall have been tendered to that party by or on behalf of the other party then in such case a Registrar or Deputy Registrar of the Family Court of Australia, upon proof by affidavit of such refusal or neglect, is hereby appointed to execute and if in his or her opinion it shall be necessary to do so, to settle the same and do all such other acts and things and execute other such documents as shall be necessary to give full force and effect hereto.

   1.9That each party shall do all such acts and things and sign all such necessary documents to give effect to the terms of this order.

   1.10That each party do release the other party from any liability for any claim that either one may have against the other.

   1.11That each party shall pay their own costs of and incidental to these proceedings but the transferee in each case shall pay the cost and disbursements of and incidental to any transfer to give effect to the terms of this order.

4. In relation to the superannuation entitlements of the parties at that time, the wife in fact had none, but the husband was a member of the SA Police Superannuation Scheme, and his gross cash withdrawal benefit in that scheme as at 6 January 1998 was $34,510 comprising his contributions to that date and interest earned on those contributions.  The parties through their respective solicitors negotiated that the husband would pay to the wife the sum of $17,000, being approximately one half of this entitlement as part of their settlement, bringing the total payment to the wife to $72,000.  The balance of $55,000 effectively represented one half of the value of the B Street property.

5. The terms of this consent order were fully executed by the parties.

6. Following the making of the consent orders the husband continued as a member of the SA Police Superannuation Scheme and continued to make contributions to that scheme. 

7. In 2008 the husband died.  At that time he was still a serving police officer.

8. On 13 February 2008 SA Police Super informed the husband’s sister that a lump sum benefit of $450,222 was payable to the husband’s estate.  However, this information was provided on the mistaken belief that the husband was single at the time of his death.

9. On 20 August 2009 probate was granted to the husband’s sister, Ms Dabnete, and her husband, Mr Dabnete, as executors of the husband’s will.  Ms Dabnete was the principal beneficiary of the residual estate of the deceased husband.  The executors duly informed SA Police Super that the deceased husband was married at the time of his death.

10. On 8 December 2009 SA Police Super invited the wife to submit an application for a death benefit to be considered by the Board on the basis that she was an eligible spouse of the husband and entitled to a benefit pursuant to s 32 of the Police Superannuation Act 1990 (SA) (“the Superannuation Act”).

11. On 13 January 2010 the wife made an application for a death benefit.  However, a decision on that application was suspended until the determination of proceedings commenced in the Supreme Court of South Australia on behalf of Ms E seeking a declaration that she was a domestic partner of the deceased husband as at the date of his death, and also seeking provision out of his estate.

1. On 16 March 2011 the claim of Ms E was dismissed on the basis of agreed terms of settlement including that she be paid $50,000, and $5,000 for costs, out of the estate.

2. On 30 June 2011 the executors filed the Initiating Application referred to above.

3. On 5 March 2012 the wife was informed that the Police Superannuation Board had approved the payment of benefits to her pursuant to s 32 of the Superannuation Act. Those benefits as at the date of the husband’s death were a pension in the sum of $1,170.15 gross per fortnight and a lump sum of $31,246.22.

4. It is common ground that under the Superannuation Act the Board has no discretion as to whom these benefits should be paid other than to the spouse of the deceased (s 32(1)(a)) and they cannot be assigned by the spouse (s 45). Further, by virtue of s 35 of the Superannuation Act and regs 6(2) and 7(2) of the Police Superannuation Regulations 2002 (SA), and subject to the Board granting an extension of time for the application pursuant to reg 6(11), the wife may elect to commute 50 per cent or less of her entitlement to a pension to a lump sum. The Board has advised that if an election was made to commute 50 per cent of the pension, as at the date of the husband’s death the lump sum benefit would be $169,776. The pension would then be reduced to $585.08 gross per fortnight.

5. On 9 March 2012 Burr J granted an injunction during the period of the adjournment restraining the wife from “dealing with any benefit she receives from SA Police Super whether it be by fortnightly pension payment or lump sum, unless by agreement in writing or further order of this Court”.  His Honour also ordered that any benefit the wife receives from SA Police Super be forthwith “directed to the trust account of the solicitors for the estate on the basis of any such sums being held in escrow pending the outcome of the Application for Final Orders”.  Those orders were continued by Fowler J on

   
   

   4 May 2012, and accordingly the wife has not yet received any payment from the Board.

6. The wife has requested that the Police Superannuation Board extend the time for her to request commutation of part of the pension to a lump sum until these proceedings are finalised.  The executors have consented to that request.  As at the date of the hearing the Board had not responded to that request, and as set out above, that was still the position as at 11 March 2014.

The Relevant Legislation

1. As can be seen the “alternative” orders sought by the executors of the estate are in fact the same, save and except an additional order sought in paragraph 3a.iv (which to repeat, I do not propose to address in any event).  The difference though is the bases on which those orders are sought.  The first basis is by way of enforcement of paragraph 1.7 of the consent orders made on 30 June 1998, the second basis is by extending the time to review the exercise of power by the Registrar in making those consent orders, and then varying the same, and the third basis is by varying or setting aside the consent orders pursuant to

   
   

   s 79A(1)(a) or (b) of the Act and then making the proposed orders.

2. Before setting out the applicable legislation in relation to those three bases, it is necessary to record the relevant sections of the Superannuation Act and the relevant regulations of the Police Superannuation Regulations 2002 (SA):

Police Superannuation Act 1990 (SA)

32—Benefits payable on contributor's death

(1)Where a contributor dies—

(a)the contributor's spouse is entitled to—

(i)a pension equal to two-thirds of the deceased contributor's notional pension and, if the contributor's employment was terminated by his or her death, a lump sum calculated in accordance with subsection (1ab); and

…

1. I will now return to the three bases on which the orders are sought.

Enforcement

1. Pursuant to s 105(1) of the Act a decree made under that Act may be enforced by any court having jurisdiction under that Act.

Review

1. Section 37A(9) of the Act provides that a party to proceedings in which a Registrar has exercised the powers of the court may within the time prescribed by Family Law Rules 2004 (Cth) (“the Rules”) or such further time as is allowed apply to the court for a review of the exercise of power.

2. Rule 18.08 of the Rules sets out the time within which an application for review is to be made. Rule 1.14 provides that an extension of time may be sought.

3. Rule 18.10 sets out the power of the court on review, which is by way of a hearing de novo:

   18.10  Power of court on review

   (1)A court must hear an application for review of an order of a Judicial Registrar, Registrar or Deputy Registrar as an original hearing.

   Note:  In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.

   (2)      The court may receive as evidence:

   (a)      any affidavit or exhibit tendered in the first hearing;

   (b)      any further affidavit or exhibit;

   (c)      the transcript (if any) of the first hearing; or

   (d)if a transcript is not available, an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.

Setting aside or varying the property settlement orders

1. Section 79A of the Act provides as follows:

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

…

the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under s 79 in substitution for the order so set aside.

1. Importantly for the purposes of this case, it was held by the Full Court in Gilbert, C.A. v Estate of Gilbert, R. G. (1990) FLC 92-125 (at 77,839) that this court “has jurisdiction to hear and determine an application under

   
   

   s 79A after the death of the other party to the proceedings, in which the original order was made.” Thus, the court has jurisdiction to hear this aspect of the application made by the executors of the estate.

The Evidence

1. The executors of the estate were represented by Ms Pyke QC. Each of the executors gave evidence and were cross-examined. They relied on their affidavits filed on 18 May 2012 and 30 September 2012, a document filed on 24 May 2012 comprising the particulars of the application pursuant to s 79A of the Act and the application for leave to review out of time the orders made by the Registrar.

2. The wife was represented by Mr Daenke.  The wife gave evidence and was cross-examined.  She relied on her affidavits filed on 8 June 2012 and 7 March 2013.  She also relied on the affidavit of her partner Mr F filed on 31 October 2012.  Mr F was not required for cross-examination.

3. In addition to the affidavits relied upon, an agreed statement of facts was filed on 26 October 2012.

4. I observe that given the passage of time since this decision was reserved, I have had recourse to my contemporaneous notes of the evidence and the submissions, and I have listened to the entire audio of the hearing.

Discussion

1. I propose to address the issue of enforcement first because it can be disposed of quite quickly. Then I will deal with the s 79A(1) application followed by the review application.

Enforcement

1. The submission of the executors of the estate is that paragraph 1.7 of the consent orders provides, inter alia, that the husband’s superannuation entitlements vest absolutely in the husband free of all further claim or demand or right or entitlement of the wife (bearing in mind that the wife effectively received $17,000 from the husband to satisfy any claim she has to the husband’s superannuation entitlement as at the date of the order), and thus the benefits available to the wife upon the husband’s death should be paid to his estate.  Further, the executors rely on paragraph 1.9 of the consent orders which provides that each party shall do all such things and sign all such other necessary documents to give effect to the terms of the this order.  In other words, it is said that that order obliges the wife to pay anything that she receives from SA Police Superannuation Scheme to the estate.

2. The difficulty with this submission is that the husband’s entitlement to superannuation ceased upon his death, and thus there is no entitlement of his that is caught by paragraph 1.7 of the consent orders and in respect of which enforcement proceedings can be brought. The pension and the lump sum that the wife became entitled to pursuant to s 32 of the Superannuation Act is her entitlement, and not the husband’s (Casey & Braione-Howard and DFRDB Authority (2005) FLC 93-219; Dowdell & Public Trustee of the Northern Territory [2007] FamCA 1276).

3. It is suggested that the wife’s entitlement is “derivative” in that she only has this entitlement because of the husband being a member of the scheme and contributing to the same up to the time of his death. That may be so but that does not alter the outcome here. The fact of the matter is that the wife’s entitlement is a new interest created by statute (the Superannuation Act). There can be no doubt that it is her entitlement, and thus it cannot be brought within the terminology of paragraph 1.7 of the consent orders.

4. Thus, I find that the executors of the estate cannot achieve the orders that they seek by way of enforcement of paragraph 1.7 (and 1.9) of the consent orders, and that aspect of the application should be dismissed.

Setting aside or varying the property settlement orders – section 79A(1)

1. Before addressing the merits of the application by the executors, as I understand it, the wife submitted that this court had no “jurisdiction” to deal with the application because there was no “property of the parties to a marriage” in any superannuation fund at the time the consent orders were made, and thus it is futile to now make an order under s 79A of the Act. It is also suggested that because the property settlement proceedings were completed and the consent orders were made on 30 June 1998, s 79(8) of the Act would not apply.

2. In support of the first proposition the wife seeks to rely on cases such as Casey & Braione-Howard and DFRDB Authority, Dowdell v Public Trustee of the Northern Territory, and Law-Smith & Seinor (1989) FLC 92-050. For example, relevant parts of the written submissions of the wife are as follows:

   (a)The court has jurisdiction under Section 79A to deal with applications where one of the parties to the marriage is deceased and the application is “an application made by a person affected by an order of the court under section 79 in proceedings with respect to the property of either of the parties to a marriage”. See Gilbert v Estate of Gilbert (1990) FLC 92-125.

   …

   (d)Because this relates to an entitlement of the wife to receive funds from the superannuation fund following the death of the husband it is not a matter relating to the “property of the parties to a marriage.” The right to the property did not arise until the husband was deceased. Section 32 Police Superannuation Act.  See also below Casey v Braione-Howard and Dowdell v Public Trustee NT.

   (e)This is not an application to which Section 79A can apply because an order of the court could not have been made under Section 79 of the Family Law Act in respect of this entitlement as it could not have been property of a party to a marriage at the time of the Section 79 order. The “property” must be property in existence at the time of the Section 79 order. Law Smith and Seinor (1989) FLC 92-050 per Nicholson CJ at 77,565.

   …

   (g)The entitlement of the respondent under the Police Superannuation Act was not “property” of the deceased.

3. I find that the first proposition is misconceived, and indeed the wife’s counsel recognised this during the hearing. As referred to above, there is no doubt that the entitlement of the wife arose from the operation of s 32 of the Superannuation Act, and that Casey v Braione-Howard and  DFRDB Authority and  Dowdell v Public Trustee of the Northern Territory are authority for the proposition that the husband’s entitlement ceased upon his death. However, although there may not have been property in any superannuation fund at the time the consent orders were made because any entitlement was subject to the contingencies set out in the Superannuation Act, that does not mean that there is no property of the parties to a marriage that can now be the subject of a s 79 order if the consent orders are set aside or varied under s 79A. The wife’s entitlement to a pension and a lump sum, albeit arising upon the death of the husband, is “property of a party to the marriage”, and can be dealt with under s 79. That outcome is not diminished by acceptance of the submission in paragraph (g) above.

4. As to the second proposition, the reference by the wife to s 79(8) of the Act is also misconceived. If either s 79A(1)(a) or (b) is satisfied then this court has a discretion to vary or set aside the consent orders, and if it considers appropriate, this court can make another order under s 79 in substitution for the consent orders. As I raise later in these reasons, it may be that at that latter point s 79(8) becomes relevant, but the initial application is not an application that relies for its provenance on s 79(8) and it is of no consequence that the property settlement proceedings were completed when the consent order was made. It can all be looked at afresh under s 79A(1) and the property that would be considered would include the wife’s entitlements.

5. I also observe that in Casey v Braione-Howard and DFRDB Authority it was the husband’s second wife who became entitled to a pension on the death of the husband, and plainly that could not be “property” for the purposes of a s 79(1) or (8) application between the first wife and the estate of the deceased husband. This circumstance clearly distinguishes that case from the case at bar.

6. It is also correct that in Law-Smith and Seinor it was held that the “property” must be in existence at the time of the s 79 order, but that does not go to any issue of jurisdiction here. If the s 79A(1) application is successful, and it is appropriate to make another order under s 79, as just explained, the property in existence would include the wife’s entitlement. That would also be the case if the review application is successful.

7. On these bases, and also noting the decision in Gilbert, there is no issue of jurisdiction here.

Section 79A(1)(a)

1. The claim is that there has been a “miscarriage of justice by reason of … any other circumstance”.

2. The miscarriage of justice is said to be as follows:

   d)The terms of the consent order, and in particular paragraph 1.7 and the payment to the wife of $17,000 calculated on the basis of the husband’s then superannuation entitlement and representing one half of the gross cash withdrawal benefit were intended to finalise the wife’s claim to the husband’s superannuation.

   e)It was not within the contemplation of the parties or either of them that the wife would become entitled to a pension and a lump sum payment from the husband’s superannuation fund upon his death.

   f)The husband continued as a member of the fund and made contributions after the consent orders and until his death.

   g)The husband thought and understood that upon his death his superannuation entitlement would pass to his estate.

   h)In the end result, the wife received a pension and a lump sum (including $17,000 in accordance with the consent orders) and the husband (via his estate) received nothing by way of superannuation entitlement, even though the consent orders left him with his superannuation entitlement.

3. The difficulty with this submission is that the authorities are such that

   
   

   s 79A(1)(a) only applies to circumstances occurring before or at the time of the orders, and it must be those circumstances which result in the miscarriage of justice (Molier & Van Wyk (1980) FLC 90-911; Public Trustee (as executor of the estate of Gilbert) v Gilbert (1991) FLC 92-211).

4. In this case the circumstances relied on arose after the orders were made, and thus they cannot be relied on to establish a miscarriage of justice.  Senior counsel for the executors of the estate attempted to argue that the circumstances here were still relevant in that the integrity of the judicial process was affected, or was compromised by those circumstances.  This argument stems from the Full Court decision in Suiker & Suiker (1993) FLC 92-436 where the court commented on the view expressed by an earlier Full Court in Clifton and Stuart (1991) FLC 92-194 that the expression “miscarriage of justice”, “relates to the integrity of the judicial process”. The Full Court in Suiker said this (at 80,472):

   As regards the view expressed in Clifton and Stuart that the expression ‘miscarriage of justice’ ‘relates to the integrity of the judicial process’ we are of the opinion that this passage was not intended to refer only to the hearing in the Family Court, but that the expression ‘judicial process’ can refer to a variety of matters and circumstances which had an influence on the outcome of the litigation.

   (See also Bigg & Suzi (1998) FLC 92-799 and Barker and Barker (2007) FamCA 13).

5. However, it has not been demonstrated to the court how the circumstances relied on here “influenced the outcome of the litigation”.  Indeed, in my view, they did not, and could not, given when they arose.

6. It also needs to be said that both parties were represented at all times, there was no suggestion of non-disclosure, there were appropriate acknowledgements of each party having received independent legal advice in the application for consent orders, the husband had access to any documentation he needed from his superannuation fund, and the relevant provisions of the were there the same as they are today, including in particular s 32. Thus, it was within the ability of the husband and/or his solicitors to appreciate and understand that if he died not having obtained a divorce, the wife would be entitled to a pension and a lump sum from the superannuation fund, and his estate would receive nothing despite his continued membership of and contribution to that fund.

7. Thus, I find that that part of the application seeking orders pursuant to

   
   

   s 79A(1)(a) must fail.

Section 79A(1)(b)

1. As I understand it, the submission of the executors of the estate is that the intention of the parties in making the consent order was that with the payment to her of $17,000 the wife would have no further claim to the husband’s superannuation entitlement and that the husband would retain the same absolutely.  It is then said that that intention has been “frustrated by operation of law” in that the husband has ended up with nothing and the wife has ended up with a pension and a lump sum. 

2. This approach has some support from cases such as La Rocca & La Rocca (1991) FLC 92-222. In that case Kay J said this (at 78,538):

   My own view is that the concept of impracticability, as referred to in this section, is akin to the application of the doctrine of frustration in contractual matters.  What the Parliament is concerned with and what ought to be concerning the Court is the happening of events which cannot be reasonably foreseen, which will have the effect of causing an injustice to one of the parties if the happening of such events is not given effect to.  

   In standard contractual doctrine, I think that is as comfortably as anywhere described by Russell J. in Re Badische Co. Ltd. (1921) 2 Ch. 331 at 379, where his Honour said:

   The doctrine of dissolution of a contract by the frustration of its commercial object rests on an implication arising from the presumed common intention of the parties.  If the supervening events or circumstances are such that it is impossible to hold that reasonable men could have contemplated that event or those circumstances and yet have entered into the bargain expressed in the document, a term should be implied dissolving the contract upon the happening of the event or circumstances. 

   Now, in my view, what the appropriate application of s. 79A(1)(b) ought to be is that circumstances that have arisen in which it becomes impracticable to carry out the orders are circumstances that could not reasonably have been contemplated and that in such circumstances, whilst impossibility is not the test and impracticability is, it may then become just and equitable to change the orders.

1. However, it is necessary to remind ourselves of what was said in the oft-quoted case of Rohde and Rohde (1984) FLC 91-592 where Gee J said this (at 79,768):

   (a)It is not enough that circumstances have arisen since the order was made which make it unjust for the order or part of the order to be carried out; the onus is upon the applicant to establish to the reasonable satisfaction of the Court, that in the circumstances that have arisen … it is impracticable for the order or part of the order to be carried out.

   (b)The word “impracticable” means gleaning a definition from the Shorter Oxford Dictionary, “not practicable”, “that cannot be carried out or done”; “practicably impossible”; “unmanageable”; “intractable”.

   (c)“’Impracticability’” is a conception different from that of “’impossibility’”; the latter is absolute, the former introduces at all events some degree of reason and involves some regard for practice (per Veale J in Jayne v National Coal Board [1963] 2 All ER 220).

   (Original emphasis)

2. It is beyond doubt that being “unjust” is not sufficient, but in my view that is precisely what the executors are relying on here. 

3. Examined objectively, it is not impracticable for the order to be carried out.  The wife received her $17,000 and the husband retained his superannuation entitlement during his lifetime.  The death of the husband does not make it “impracticable” to carry out the order (and I suggest it cannot be said that the husband’s death was a circumstance “that could not reasonably have been contemplated”). 

4. It must not be forgotten that the entitlement of the wife arose from the operation of s 32 of the Superannuation Act, and that entitlement is not the entitlement of the deceased husband.

5. Whether it matters or not, as noted above the relevant provisions of the Superannuation Act were in force at the time of the making of the consent orders, and it was open to the husband at any time prior to his death to avoid what has transpired by obtaining a divorce.

6. Thus, I find that the aspect of the application seeking orders pursuant to

   
   

   s 79A(1)(b) must also fail.

Review of the exercise of power by the Registrar

1. The first issue to address here is the application to extend the time to review the exercise of power by the Registrar in making the consent orders.

2. The principles with respect to the grant of an extension of time are well settled.  For example, in Gallo v Dawson (1990) 93 ALR 479, McHugh J said at 480:

   The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.

3. Although these remarks were in the context of an extension of time to file an appeal, the principles apply equally to the extension of time application here.

4. Thus, the fundamental issue is whether an extension of time is necessary to enable the court to do justice between the parties, and in assessing that there are a number of factors to be taken into account where relevant.  For example, and looking at this case in particular, the relevant factors are, whether there are adequate reasons for the delay, whether there are substantial issues to be tried in the event of time being extended (including whether orders significantly different to those sought to be reviewed may be made), the consequences for the parties of the granting or the refusal of the application, and whether there is any hardship or injustice to the other party that cannot be compensated for by orders for costs or otherwise.

5. Turning to those factors.

Delay

1. There is clearly an adequate explanation for the delay in bringing the application before the court, and I do not understand the wife to suggest otherwise.  The need to seek a review of the consent orders only became apparent following the death of the husband and the lodging of a claim with

   
   

   SA Police Super by the wife in 2010.  However, the determination of that claim by the Board was suspended while the proceedings instituted by Ms E were pending.  Those proceedings were finalised in March 2011, and the Initiating Application now before the court was filed on 30 June 2011.

Issues to be tried

1. Again there would appear to be little doubt that if time is extended there are substantial issues to be tried, namely, what if any orders should be made in relation to the entitlements of the wife.  It is also apparent that there is the prospect of significantly different orders being made compared with the consent orders.

The consequences of granting or refusing the application

1. Given that I have found that the enforcement application and the s 79A(1) application should be dismissed, if the application for an extension of time is dismissed then the executors cannot further pursue a claim against the wife’s entitlements. Thus the estate would be seriously prejudiced. On the other hand, if the application is granted then the wife has the prospect of at least some of her entitlements going to the estate, and thus she will also suffer prejudice as a result.

Hardship or prejudice to the wife

1. This is really part and parcel of the previous topic.  As explained the wife may suffer prejudice if time is extended, and if the outcome is a reduction of her entitlements then that clearly could not be compensated for by an order for costs.

Conclusion

1. The consideration of these factors is intended to inform the courts’ determination of the fundamental issue, namely is it necessary to grant the extension of time to enable the court to do justice between the parties.  Here, I consider that the interests of justice require that the application be granted.  Despite the prejudice that may be caused to the wife, there is an adequate explanation of the delay, there are substantial issues to be tried, and there would be serious prejudice to the estate if the extension of time is not granted.  Thus, I propose to make an order extending the time nunc pro tunc to the date of the filing of the Initiating Application.

The review

1. The hearing of an application to review an exercise of power by a Registrar is a hearing de novo.  Thus I am to rehear the whole matter, and it is not an exercise of ascertaining whether in making the consent orders there was an error on the part of the Registrar.

2. The material that is before me on the review is any affidavits or exhibits that were before the Registrar, and any further affidavits or exhibits relied upon by either party. 

3. At this point I observe that despite the review being a rehearing of the whole matter, neither party seeks to disturb the consent orders that have been made, save and except insofar as they deal with the “superannuation entitlements” of the wife. Ms Pyke QC submitted that any further orders should be limited to just dealing with the wife’s entitlements on the basis of the estate and the wife retaining what they each now have.  It may be that that is the outcome, but because it is a hearing de novo the outcome still has to be arrived at by applying s 79 of the Act. Thus the question that needs to be addressed is whether, given the current assets and liabilities of the parties, including the entitlements of the wife, to the extent that they can be included, the respective contributions of the husband up to the date of his death, and of the wife, and the relevant s 75(2) factors, any further orders should be made, and if so what. Of course, it first needs to be determined that it is just and equitable to make orders, and I will address that requirement in due course.

4. I observe that until I raised the issue, both parties seemed to be content to treat the wife’s entitlements as “property”.  However, as explained above, there is a real difficulty in that approach given the absence of actuarial evidence of the value of the pension.  Without some evidence of, or a method of calculating a capital value, it is simply income and not property to be included in the schedule of assets of the parties.  Fortunately, as touched on earlier, there is a method available to calculate a capital value, and I will return to this shortly.

5. The orders sought by the executors would entail the wife paying to the estate all of the benefits that she is entitled to receive from SA Police Super, whereas a dismissal of the application, which is what the wife seeks, would see her retain those benefits. As to the orders sought by the executors, I note that it was not explained to the court on what basis an order could be made that the estate receive the fortnightly pension (or even part thereof) that the wife is entitled to. It is income and as such is not amenable to an order under s 79 of the Act. In any event, as will be seen, it is not necessary to determine this issue.

6. There was a proposal floated by the senior counsel for the executors that if it was not considered appropriate for the estate to receive all of the benefits payable to the wife then at the very least there should be a percentage division of 75 per cent / 25 per cent in favour of the estate.  I will return to this issue later in these reasons, but that proposal arose by utilising a calculation involving the number of years that the husband was a member of the fund and the number of those years which were years when the parties were married.  I also note that in that calculation, and indeed in any calculation that is made, allowance would need to be made for the fact that the wife received $17,000 on account of her claim to the husband’s superannuation entitlement at the time the consent orders were made.

7. At this point I also raise the interesting question of whether in considering the issue of property settlement on a de novo basis it is necessary in the circumstances of this case to in fact apply s 79(8) of the Act. That section provides for property settlement proceedings to be continued following the death of a party. It could be argued that what this court is now dealing with is uncompleted property settlement proceedings where one party has died. On that basis it would be necessary to make findings in accordance with

   
   

   s 79(8)(b)(i) and (ii) before proceeding with the matter. This was not an issue raised by either party, and thus I have heard no argument in relation to it. Fortunately though, it seems to me that in this case those requirements are clearly satisfied. In other words, if the husband had not died then there would have been far more superannuation to be considered than there was at the time of the making of the consent orders. Accordingly, I can safely find that this court would at least have made an order with respect to that if the husband had not died. In relation to the requirement in s 79(8)(b)(ii), given my findings to date it is again beyond doubt that it is still appropriate to make an order with respect to property. Thus, I am content to proceed with the determination

   
   de novo

   even if s 79(8) applies.

8. I also observe that in Stanford v Stanford (2012) FLC 93-518 the High Court considered the application of s 79(2) of the Act (the just and equitable requirement) in cases where s 79(8) is relied on to continue property settlement proceedings. The plurality said this (at 86,639):

   … In cases where s 79(8) applies, a court must consider whether, had the party not died, it would have been just and equitable to make an order and whether, the party having died, it is still just and equitable to make an order.

   (Original emphasis)

   In my view, even expressed in this way, those requirements are satisfied.

9. In paragraph 42 of the High Court decision in Stanford, the plurality said this:

   In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship.  It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).

10. Here it can readily be seen that the pre-existing property arrangements were brought to an end by, if not the separation of the parties in 1997, then certainly by the making of the final consent property settlement orders in 1998. Further, since then (namely in 2008) the wife has become entitled to benefits under the Superannuation Act, and it is the fate of those benefits, which clearly have not been the subject of common use, that is the primary issue now.  It also must not be forgotten the basis on which the question of property settlement is being considered here, namely, by way of a hearing de novo in the context of a review of the exercise of power by the registrar.  In other words, as explained above, the entire issue of property settlement between the parties is being considered afresh.  Thus, I find it is just and equitable to make an order for property settlement between the wife and the deceased husband’s estate.

11. The assets and liabilities of the parties would appear to comprise the following:

The wife

Assets

An interest as tenant in common with her son in the house

property at G Street, Suburb H  E$195,000

motor vehicle  E$    2,000

Superannuation

L Super Fund   $  53,860.32

Liabilities

Mortgage to J Credit Union (wife’s half share)     $  40,000
           Loan – J Credit Union  $      110

Legal fees  $    5,200

The wife clearly has a legal and co-extensive equitable interest in the Suburb H property, in her motor vehicle, and in her superannuation benefits, and no-one has suggested otherwise.

1. Two comments though need to be made about this schedule.  First, I understand that the wife’s interest in the L Super Fund is an accumulation interest, and although there was no valuation of it or any evidence of any taxation liability, both parties appear to be content to include it at the amount shown, and in the same schedule as the non-superannuation assets.  Secondly, it is inappropriate to take into account the wife’s legal costs.  The estate would have legal costs as well, and the parties should each bear their own costs at this point.

2. The wife of course is also entitled to receive a pension of $1,170.15 gross per fortnight from the date of the husband’s death, and a lump sum of $31,246.22 from SA Police Super.  The lump sum amount to which she has at least a statutory claim, and in respect of which she will have a legal interest certainly after receipt of that money, should be included in the asset schedule regardless, and I will do so.  The wife has not received payment of the pension, and as at

   
   

   22 October 2012 the arrears due to her totalled $83,557.99 (net of estimated income taxation).  It is arguable that this amount should be included in the schedule of assets, but as I explain shortly that would be overtaken by the inclusion in the schedule of a capital value for the whole of the pension.

3. As to the pension, the evidence is that subject to an extension of time being granted the wife can commute up to 50 per cent of her pension, and if she did that she would receive a lump sum of $169,776, and have an ongoing pension of $585.08 gross per fortnight.  Although there is no specific evidence as to this, it would seem logical that if this occurred then the accumulated arrears would be reduced by half.

4. However, I propose to proceed on the basis that the capital value of the whole of the pension is $339,552, and that the wife presently has a statutory claim to the pension, and once received she will certainly have a legal and co-extensive equitable interest therein.  The evidence is that a commutation of 50 per cent of the pension would result in a lump sum of $169,776, and thus logically it seems to me that the lump sum value of the whole of the pension can be taken to be double that amount.  As referred to above, this is a proposition supported by

   
   

   Ms Pyke QC, and not commented on by Mr Daenke.  On the basis then of including this amount in the asset schedule, logically there would also be no arrears to take into account.

5. I observe that given the lack of relevant evidence and the absence of submissions, it would not be possible to finalise these proceedings without adopting the approach outlined above.  I have no evidence as to whether the wife will be granted an extension of time to commute the pension, I have no separate actuarial evidence as to the capital value of the pension, I have no direct evidence from the Board as to the impact on the arrears of the pension as a result of commutation, and the wife’s instruction to her solicitor is to not make any further submissions as to these issues.  Thus, I am left to do the best I can with the evidence and the submissions that I do have.  I also note that there has been no suggestion of adjourning the case to enable further evidence to be obtained and/or further submissions made.

The estate

Assets

House property at B Street  E$470,000

Currently the executors of the deceased husband’s estate have a legal interest in this property.

1. In relation to the estate I note that all of the estate’s liabilities have been paid and there is no cash sum left.  As a result, the executors are personally bearing the cost of rates and taxes, maintenance and insurance in respect of the house property.  There are also further legal costs to be met, although a substantial proportion of those have been paid already, as have the amounts payable to Ms E in accordance with the terms of settlement with her.

Contributions

1. There was a dearth of evidence as to the respective contributions of the wife and the husband (up to the time of his death).  It would be reasonable to assume though that up to the making of the consent orders their respective contributions can be treated as equal given the terms of those orders.  From the evidence presented to the court, it is quite apparent that the settlement effectively proceeded on the basis of an equal division of the property of the parties, as also occurred in relation to the husband’s superannuation entitlement.

1. It becomes more difficult when assessing the contributions made by the parties following the consent orders.  In relation to the wife, all I can glean from the evidence is that she has purchased the property at Suburb H with her son, she has, again with her son, serviced the mortgage over that property, she has utilised an amount of $15,000 and interest earned on part of that in renovating the property, she has cared for and supported her son who receives a disability pension, she worked for two years in the service industry, and since approximately 2000 she has been working at the K Hospital, and she has accumulated a superannuation entitlement with L Super Fund of $53,860.32.  Apart from one issue, it would also seem safe to assume from the evidence that neither the husband nor the estate contributed either directly or indirectly to the acquisition, conservation or improvement of any property of the wife in this period.  That one issue is that there is no evidence of what the wife did with the $72,000 that she received from the husband and in particular whether any of that amount was put towards the purchase of any property by her.

2. As for the husband, the most significant evidence is first that he paid that total sum of $72,000 to the wife to meet her claim for property settlement including $17,000 to meet her claim to share in his superannuation entitlement, which entitlement he then retained.  He of course also retained the B Street property.  Further, he remained a member of SA Police Super and he continued to make contributions to that superannuation fund until his death.  From just prior to the date of the consent orders until the date of his death, his contributions totalled $24,846.86, and that of course generated interest.  The significance of that is that the pension component of the wife’s entitlements is calculated on the basis of the pension that the husband would have received if he had not died, and the lump sum component is calculated on the basis of the husband’s salary and his period of service.  The wife of course made no direct financial contribution to the husband’s superannuation entitlements at any time, but particularly following separation or the making of the consent orders.  Further, although the husband retained his superannuation entitlement and contributed to it subsequently neither he nor his estate has ever received any benefit from that superannuation entitlement because of the husband’s death whilst still married.  With the house property on the other hand the husband clearly benefited from retaining that as an asset and so has the estate.

3. Given the state of the evidence it is extremely difficult to assess the respective contributions, but doing the best I can, although the contributions up to separation and the making of the consent orders can be treated as equal, thereafter the husband made greater financial contributions by virtue of paying $17,000 to the wife and then continuing to contribute to his superannuation entitlement.  As a result there should be a slight weighting in favour of the estate of the deceased husband to account for this, and the contribution entitlement of the estate should be assessed at 52.5 per cent and the wife’s contribution entitlement assessed at 47.5 per cent at this point.

4. I observe that I was given no assistance on this topic by either counsel.  Indeed, the only submission made was that to which I have already referred, namely the submission that there could be a 75 per cent / 25 per cent division of the “net assets” in favour of the estate.  That was a submission put by the senior counsel for the estate and was calculated by taking the number of years that the husband was a member of the fund (27 years) and then identifying the number of those years during which the parties were married (14 years).  However, this is a calculation that can only relate to the entitlements of the wife arising upon the death of the husband.  It can have no relevance to the overall assets of the wife and the estate.  Moreover, even so confined, Ms Pyke QC was not able to say how the percentage division would apply to the wife’s pension benefit given of course that the wife did not present any actuarial evidence.

The section 75(2) factors

1. The first point to note is that because the husband is deceased there are no factors under s 75(2) that can apply to the estate.

(a)      The age and state of health of the wife

1. At the time of the hearing the wife was aged 55 years.  She broke her arm on 18 May 2012 and she had a surgical plate inserted on 19 May 2012 to aid the healing process.  Thereafter she was required to have her arm in a sling for a couple of months and later she underwent physiotherapy treatment.  She was off work until 8 October 2012, but she found it difficult to undertake her normal duties and she made enquiries about transferring to work in a different area.  The result of those enquiries is unknown.

(b)      The income, property and financial resources of the wife and her physical and mental capacity for appropriate gainful employment

1. The wife’s income from her employment is $1,400 net per fortnight, and as referred to above she has shift work at the K Hospital.  She used up all of her sick leave and some of her long service leave when she was unable to work because of her broken arm.  There is a doubt on the evidence as to her physical capacity to continue working in her current employment.  There is then the issue of the pension.  She is currently entitled to a pension of $1,170.15 gross per fortnight, or if she commuted 50 per cent of that then the pension would be $585.08.  As to her assets and liabilities, they are as set out in paragraphs 88 to 92 inclusive above, although of course her entitlement to a pension is there represented by a capital value.  Thus I need to be careful not to double dip in assessing this factor.

(e)      The responsibilities of the wife to support any other person

1. The wife cares for and supports her 36 year old son, Mr M, who is legally blind.  He receives a disability pension and that is put towards his share of the mortgage repayments over the house property at Suburb H.  He also works at N Pty Ltd two to three days a week but earns minimal income for that work.  He has regular appointments with various health professionals, and the wife is required to take him to those appointments.

(f)       The eligibility of the wife for a pension under any superannuation fund or scheme

1. The wife of course is entitled to a pension as referred to above from SA Police Super.

(g)      A standard of living that in all the circumstances is reasonable

1. No issue has been raised in relation to the wife’s standard of living and thus it is not a factor that I need to take into account.

(n)      The financial circumstances relating to the wife’s cohabitation with another person

1. Since 1998 the wife has resided in a de facto relationship with Mr F.  He was aged 48 years at the time of the hearing, and he is “[employed in the service industry]”.  He tells the court in his affidavit that he has never had a substantial income, and it has been minimal (less than $10,000 per annum) since 2008 when he was diagnosed as suffering from “vertigo”, and he has had to reduce and sometimes cease working.  His income is paid into a joint account he has with the wife, and he draws out money to meet his personal expenses.  Although he resides there, he does not contribute to the expenses of the household at Suburb H.  He does though perform work and labour around the house and assist the wife in caring for her son.

2. Although I received no assistance from the wife’s counsel as to any adjustment that should be made as a result of a consideration of these factors, I note that the senior counsel for the estate submitted that there should be no adjustment.  Again, doing the best I can, and without knowing the final position with the wife’s pension, I consider that there should be no adjustment in her favour.  She is able to support herself, she is able to care for and support her son, and she receives assistance from her de facto partner.  In addition, she has her interest in the house property at Suburb H, a motor vehicle and superannuation entitlements with L Super.

Conclusion

1. On the basis of the approach that I have adopted, the assets and liabilities of the parties are as follows:

The wife

Assets

An interest as tenant in common with her son in the house

property at G Street, Road, Suburb H  E$195,000.00

Motor vehicle  E$    2,000.00

Lump sum payable   $   31,246.22

Capital value of pension   $ 339,552.00

Superannuation

L Super Fund   $   53,860.32

Sub total   $ 621,658.54

Liabilities

Mortgage to J Credit Union (wife’s half share)       $  40,000.00
           Loan – J Credit Union   $      110.00

Sub total   $  40,110.00

Net total   $581,548.54

The estate

Assets

House property at B Street  E$470,000.00

Grand Total    $1,051,548.54

1. I have found that on the basis of the respective contributions of the parties there should be a percentage division of 52.5 per cent/47.5 per cent in favour of the estate.  As a result the estate is entitled to assets to the value of $552,067 (rounded up), and the wife is entitled to assets to the value of $499,481 (rounded down).  The estate of course has only one asset namely the house property valued at $470,000, and therefore on the basis of each party retaining what they have the wife should pay to the estate the sum of $82,067.

2. Plainly the wife is able to make that payment.  Without even considering commutation, she is entitled to receive a lump sum of $31,246.22, and as at

   
   

   22 October 2012 the arrears of the pension (net of income tax) were $83,557.99.

3. Finally, it is unclear whether in light of the High Court decision in Stanford it is still appropriate as a final exercise under s 79 of the Act for the court to take a step back and consider whether in all the circumstances of the case it is just and equitable to make the order proposed. In any event, if it is still appropriate then I consider that the proposed order fits that description. I also add that in reaching my decision I have taken into account the fact that the capital value of the wife’s pension is not like money in the bank for example, and the wife can only commute up to 50 per cent of the pension (and of course if time is not extended then she may not be able to commute any of the pension).

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 2 May 2014.

Associate:

Date:              2 May 2014