DALMANS & FARBER

In the matter of *Dalmans & Farber*, the Federal Circuit and Family Court of Australia considered an application by the wife to vary consent orders made in 2011. These original orders, made pursuant to s 90MT(1)(a) of the *Family Law Act 1975* (Cth), stipulated that the husband's superannuation fund was to pay a sum of $34,550 to the wife upon the occurrence of a splittable payment becoming payable to the husband. The dispute arose because the trustee of the superannuation fund was not afforded procedural fairness due to the misconduct of the wife's former solicitor, and the husband had subsequently rolled over his superannuation into a self-managed fund without knowledge of this misconduct. The wife sought a variation of the original consent orders, some seven years later, under s 79A of the Act, arguing that compliance with the existing orders was impossible due to frustration.

The court was required to determine whether the circumstances warranted a variation of the original consent orders under s 79A of the *Family Law Act 1975* (Cth). Specifically, the court had to consider if the failure to afford procedural fairness to the superannuation trustee, coupled with the subsequent rollover of the husband's superannuation and the resulting impossibility of compliance, constituted grounds for setting aside or varying the existing orders. The wife's claim was predicated on the notion that the original orders could no longer be complied with due to frustration of contract, a consequence of events that had transpired since their making.

The court reasoned that the original orders, while validly made, had become practically impossible to implement due to the superannuation trustee not being afforded procedural fairness and the subsequent rollover of the husband's superannuation into a self-managed fund. This situation, the court found, fell within the ambit of s 79A(1)(b) of the Act, which permits the variation of orders where it is just and equitable to do so due to the circumstances of the case. The court applied the principle that where consent orders become impossible to comply with due to unforeseen events or procedural defects that prevent their execution, a variation may be necessary to achieve a just and equitable outcome.

The court ordered that the original orders 12 and 14 made on 15 June 2011 be varied. The variation stipulated that whenever a splittable payment becomes payable to the husband out of his interest in Super Fund 2, the wife be paid $34,550 in accordance with the relevant regulations, with a corresponding reduction in the husband's entitlement. The operative time for these varied orders was set as four business days after a certified copy of the sealed orders was served on the trustee of Super Fund 2.