Gabel and Yardley - [2007] FamCA 1322

FAMILY COURT OF AUSTRALIA

GABEL & YARDLEY

[2007] FamCA 1322

FAMILY LAW – PROPERTY – Superannuation – Application to reopen property proceedings six years after an adjournment granted under s 79(5) of the Family Law Act 1975 pending the ‘falling in’ of the husband’s superannuation – whether the property orders made were of an ‘interim’ or ‘partial’ nature – effect of reopening under the Family Law Legislation Amendments (Superannuation) Act 2001 and whether this would permit the making of a ‘splitting order’

Family Law Act 1975 (Cth)

Family Law Legislation Amendments (Superannuation) Act 2001(Cth)

Harris & Harris (1993) FLC 92-378

Hickey & Hickey and the Attorney-General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143

Burridge & Burridge (1980) FLC 90-902

Gebert & Gebert (1990) FLC 92-137

Coghlan & Coghlan (2005) FLC 93-220

PAJ & GMJ [2003] FamCA 751

Taylor & Taylor (1977) FLC 90-226

Bassi and KD Sales Force Specialists Pty Ltd & Maas (1999) FLC 92-867

Grace & Grace (1998) FLC 92-792

Martin & Martin (1986) FLC 91-737

Carson & Carson (1999) FLC 92-835

O’Shea & O’Shea (1988) FLC 91-964

Robson & Robson and Ors (2003) FLC 93-145

Van Essen & Van Essen (2000) FLC 93-028

Meggitt Overseas Ltd and Ors & Grdovic (1998) 43 NSWLR 527

Versace & Armstrong [2001] FMCAfam 231

T & T [2001] FamCA 866

Townsend & Townsend (1995) FLC 92-569

Chorn & Hopkins (2004) FLC 93-204

APPLICANT:

Ms Gabel

RESPONDENT:

Mr Yardley

FILE NUMBER:

CAF

1684

1997

DATE DELIVERED:

12 November 2007

PLACE DELIVERED:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

14-15 September 2005

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Brzostowski

SOLICITOR FOR THE APPLICANT:

Ms Dobinson

COUNSEL FOR THE RESPONDENT:

Ms Tonkin

SOLICITOR FOR THE RESPONDENT:

Ms Barralet

Orders

The wife’s application filed 21 February 2002 (as subsequently amended) is dismissed.
The husband’s application reflected in his response most recently amended 13 December 2004 is dismissed.
The finalisation of the hearing of matters relating to the division of the property of the parties is set down for hearing on a date to be notified to the parties as soon as possible after the expiration of the time for filing an appeal against these orders or the delivery of judgment in the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Gabel & Yardley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 1684 of 1997

MS CABEL

Applicant

And

MR YARDLEY

Respondent

REASONS FOR JUDGMENT

Foreword

On 3 October 1997, the wife sought a property division under s 79 of the Family Law Act 1975 (the Act) by filing an application for final orders. The matter was heard before me on 17-18 August 1999 and I made orders and delivered reasons on 18 August 1999.
The judgment provided that the property of the parties, excluding superannuation, would be divided 60 percent to the wife and 40 percent to the husband. Among other things, the orders provided that the former matrimonial home be transferred to the wife who would then take over the mortgage repayments, the husband would receive one car and the wife the other, the payment by way of “interim order” of $10,000 from the wife to the husband, and a further sum of $21,000 to be paid upon any adjustment or further order being made upon the resumption of, or commencement of new proceedings about property.
A series of orders were made relating to the parties’ superannuation, including Order 10 which relevantly provides,
THAT otherwise the proceedings be adjourned under section 79(5) to a date to be fixed by application to the Registrar by either party upon the husband is [sic] becoming entitled to receive his superannuation, or any part thereof, whether by retirement, incapacity, retrenchment or otherwise or such earlier date as may be otherwise agreed between the parties or otherwise ordered.
Orders 11-13 provided for both parties to authorise their superannuation funds from time to time to inform the other side of their entitlements to superannuation, and restraining both parties from taking any part of their superannuation without notice being given to the other side.
The application in these current proceedings was brought by the wife seeking leave to set aside the orders made by me on 18 August 1999 and seeking further orders in relation to the husband’s superannuation, specifically a splittable payment from his Colonial First State superannuation fund and his Commonwealth Superannuation Scheme (“CSS”). In response, the husband sought that the wife’s application be dismissed, and that my orders relating to superannuation made on 18 August 1999 be vacated. Both parties therefore seek changes to the Orders previously made by me but the outcomes sought by each are different.
On 21 June 2005 the wife’s current application came before her Honour Justice Lawrie. In a short ex-tempore judgment her Honour determined that the matter should be remitted back to me because it appeared to her unclear whether the orders made in August 1999 were interim or final, and because I had already made relevant determinations in the matter, and granted the parties costs certificates pursuant to section 10(3) of the Federal Proceedings (Costs) Act 1981 in respect of the aborted hearing before her Honour.
The wife initially sought that the matter be dealt with by way of a case stated. I refused this request and instead conducted an interim hearing on the issue on 14-15 September 2005.
I wish also to record at this point my apology for the delay in delivery of judgment. I accept that the delay has undoubtedly caused the parties a level of emotional anguish and possibly some financial difficulty. I offer my sincere apologies.
Although the parties separated almost ten years ago, throughout this judgment from time to time reference will be made to the parties as the husband and the wife. This is for convenience only and I do not wish to cause any offence to either party by doing so.

Orders Sought

Orders sought by the wife appear at Endnote 1 Endnote 1. Orders sought by the husband appear at Endnote 2 Endnote 2.

Background

The husband is currently aged 60 and the wife is 59. The parties married in August 1969, separated under one roof in August 1996, and physically separated in March 1997. The parties have four adult children.
The husband commenced working for the Australian Defence Force in 1963, six years prior to marriage and continued in his employment until 1974, where he commenced working for the Department of Defence. At this point he preserved his DFRDB benefits until he qualified for 20 years service. In that year, the husband joined CSS. In 1978 the husband transferred to the public service where he worked until 1981. In that year the husband commenced employment at an educational institution, and in 1983 began receiving a DFRDB pension. In 1991 the wife joined the public service and joined the PSS.
The parties separated in 1996 and judgment was delivered in 1999. The husband had already re-partnered at the time of hearing and in October 2000 the husband married his current wife. In March 2002 the husband resigned from his employment with the educational institution and became eligible to receive benefits from CSS, including a lump sum and a periodic pension. He then rolled over the lump sum into Colonial First State. This fund’s approximate value is $214,650. At the same time, the husband started receiving a pension from CSS of approximately $765 per week.
On 9 May 2002 consent orders were entered into which enabled the husband to receive ComSuper entitlements of approximately $225,000 as a lump sum and $37 500 as a yearly pension. Approximately $198 000 was rolled over, and $24 000 remained. On 24 June 2002 the husband drew $24,000 from the CSS lump sum which was deposited into his and his new wife’s CPS account. On 8 July 2002 the husband withdrew $45,000 from CPS and deposited it into his mortgage account.

Summary Analysis of Possible Approaches

In this matter I have identified five possible approaches to the matter which I will summarise briefly before proceeding further.

(1) Consent to set aside orders

The orders made by me on 18 August 1999 (“the Orders”)(disregarding for the moment the nature of the orders or their content) were the subject of an application by the wife to be set aside pursuant to s 79A(1)(b). The wife’s “Further Additional Further Amended Application for Final Orders” was filed on 9 March 2005. The husband in his response (apparently still relied upon but filed before the wife’s last version of her application) seeks orders which implicitly seek that the Orders be set aside.[1]
[1] See Endnote 2
I could approach this as a case where both parties seek that the orders be set aside and hence that both parties (for different reasons and seeking different alternative orders) consent to the setting aside of the Orders and hence s 79A(1A) could apply.
If I were then to proceed on that basis, the situation would be that there had been an order made under s 79. The saving provision under the Family Law Legislative Amendment (Superannuation) Act 2001 (namely s 5(3)) would not apply because s 79A(1A) is not one of the nominated exemptions. Subsequently legislation about superannuation in family law matters was introduced into the Parliament and enacted. Among the enactments was Family Law Legislation Amendments (Superannuation) Act 2001. That provided in the definition section for:
Section 79 order means an order (other than an interim order) made under section 79 of the Family Law Act.
Section 5 of that Act provided relevantly as follows:
…(2) Subject to subsections (3) and (4), the superannuation amendments do not apply to a marriage if a section 79 order, or a section 87 agreement, is in force in relation to the marriage at the startup time.
(3) If a section 79 order that is in force at the startup time is later set aside under paragraph 79A(1)(a), (b), (c), (d) or (e) of the Family Law Act, then the superannuation amendments apply to the marriage from the time the order is set aside.
Accordingly, if the court were to set aside the Orders, there would be a hearing de novo (not necessarily before me) and the distribution which has already occurred pursuant to the Orders would be treated as a premature distribution or effectively as “interim” orders (although not in the sense of interim orders as that term is used in the definition of a section 79 order in the Family Law Legislation Amendments (Superannuation) Act 2001. As anomalous as that may seem, no splitting order could be made.

(2) Setting aside under s 79A(1)(a) or (b)

The wife in her application seeks that the orders be set aside under s 79A(1)(b). It is also possible to contend however, that the Orders might be set aside under s 79A(1)(a) – “or any other circumstance”. This would be on the basis that there had been a miscarriage of justice (but not for any of the specified reasons in the subsection). As has been previously determined, the ‘catch all’ phrase “or any other circumstance” is not be considered ejusdem generis with the other reasons set out in that subsection.[2]
[2] See for example Gebert & Gebert (1990) FLC 92-137
Notwithstanding the contention of the wife, the Orders are practicable. The consequences at present may not be those that were originally envisaged by either party or the court at the time they were made but the orders have been in the main and otherwise, could, still substantially be carried out.
However, possibly given both parties are unhappy with the orders as they presently stand, the time that has elapsed, the significant legislative change which may have turned out to be different from what was originally contemplated and the fact that further litigation was mutually contemplated when the Orders were made, I could find “or any other circumstance” as having been established and in such circumstances apply s 79A(1)(a).
The effect of this would be to have the orders set aside; for there to be a new de novo hearing (with the past distribution taken into account) and a splitting order would be possible because the setting aside of the Orders had taken place under s 79A(1)(a).

(3) The orders are not set aside at all

The event which was to terminate the “adjournment” under s 79(5) (or perhaps to trigger the further consideration of the matter by the court) has now been fulfilled. (The husband has become “entitled to receive his superannuation”). The matter could now be resumed (whatever that may mean in the circumstances) on one of two bases.
The first is that if the previous Orders were partial orders (and at the same time not “interim orders” – if it is possible for orders to be so simultaneously categorised), s 5(3) of the Family Law Legislation Amendments (Superannuation) Act 2001 would apply and the Court would not be able to make a splitting order in relation to the parties’ superannuation.
However, the Court could make an order about the superannuation that had fallen in and been converted into property and could, in such proceedings, take into account the income stream of the husband’s pension as a resource under s 75(2). This is predicated on the proposition that the court can make orders under section 79 in instalments. However, this seems to be the inescapable consequence of subsections 79(5) and 79(6). (As to whether this one exercise of power or two is a question I consider later in these reasons.)
In such an arrangement it would be feasible to determine that it is only the superannuation converted into property which needs to be divided. (The other slices of the property “salami”[3] would remain as “sliced”.) While an order made dividing this property would have to fulfil the requirement of a just and equitable order and would have to take account of contributions to the fund, and otherwise the s 75(2) factors, it would only be this “property” which would be affected.
[3] For a consideration of the “salami” concept see the references to Burridge & Burridge later in these reasons
This approach would require the acceptance of the proposition that the Court can make orders about the division of property at different times but as the one exercise of power.
Such an approach seems to have been substantially, the intention of the parties and of me as the trial judge at the time when the Orders were made although I could not point to, or otherwise identify, any specific reference thereto.
The second basis is for the Orders to be considered “interim” orders. In this case the court could make a splitting order and could otherwise deal with the property which was superannuation at the time of the first hearing.

(4) Orders not set aside but recommenced not by triggering event but because there was agreement or order that the “adjournment” be terminated.

A further way in which it might be said that this matter might proceed is that the orders are not set aside and the hearing be regarded as resumed by consent or by Court order but not because of the triggering event. I had already during the course of the hearing of this matter determined that the parties could break the adjournment if they sought to do so and bring the matter back before the Court. The only difference between this approach and the preceding approach is the reason for the matter’s being in Court - not any of the consequences which would flow. These would be the same as above.

(5) Section 79(5) adjournments are in fact adjournment strictly so called, and orders made under section 79(6) (or for that matter section 79(5) are truly interim orders and the judge hearing the matter initially is part-heard.

The final different approach is that the orders are not set aside and the proceedings begun so long ago are regarded as part-heard. This would be a very inconvenient outcome in that as has been remarked in other cases, even an ‘adjournment” for twenty years would in the appropriate circumstances be valid. During such a period the initial judge may have ceased to be a judge or be unavailable to “resume” the hearing. This may necessitate a rehearing if the parties do not consent to the evidence and possibly any findings in the previous hearing being admitted or applying.
In these circumstances irrespective of whether the adjournment was broken or the matter was brought back by reason of the Orders’ own terms and if the previous orders were found to be interim orders, I as the original judge would be part-heard and any other judge would have heard the matter de novo. A splitting order would be possible because of the exemption referred to above and the hearing itself would take into account the distribution that had previously occurred.

General consequences

In summary, the effect of the application of some of the above approaches is that there would be a hearing de novo. This would involve a division of the net property of the parties as it is at present is but taking account of contributions that have been made to the property both either globally or on an asset by asset basis or a mixture of both. The circumstances of the parties would be taken into account in fulfilment of s 75(2) and that would also take account of the effect of the distribution that previously made.
If the new hearing comes about as a result of the previous Orders being set aside under a subsection of s 79A other than s 79A(1)(a) or (b) (relevantly) it appears that the opportunity to make a splitting order about the superannuation of the husband would not be available. That would not however preclude the superannuation which has become property otherwise from being divided as part of the new hearing.
Alternatively, if the Orders were set aside pursuant to s 79A(1)(a) or (b) a splitting order could be made.

How The Matter Might Proceed

The Court has maintained Harris & Harris[4] and Hickey & Hickey and the Attorney- General for the Commonwealth of Australia (Intervenor)[5] that there must be only one exercise of the Court’s power to divide property under s 79. Their Honours in Hickey (supra) took account of the fact that there might be a number of different substrata of the exercise of that power. For example, most property orders made by the Family Court contain a number of different subsections which deal with different items of property. That does not overall make the exercise of the power under s 79(4) multiple exercises of power.[6]
[4] (1993) FLC 92-378
[5] (2003) FLC 93-143
[6] At page 78,387
By the same token, if the Court has made a final determination (so far as it was aware) of all of the property of the parties as it was then known, and some time later, either or both of the parties comes to the Court, and without seeking to set aside the previous orders, seeks to re-litigate the matter or to seek a further order under s 79, the Court would be justified in saying that its jurisdiction was spent.
However there is nothing explicit in the Family Law Act 1975 requiring that the division of property of the parties by court order should occur at one time and one time only. Public policy would dictate that it was both inappropriate and contrary to what has been described as the “clean break” principle for the litigation to limp through a series of trials. But at the very least, the circumstances envisaged by the legislature in s 79(5) (however they may be categorised) are either exceptions to or (improbably) examples of the clean break occurring in a number of pieces.
His Honour Justice Nygh in Burridge & Burridge[7] contemplated that there could be what he described as a “salami order” whereby a Court could make a number of different slices of the property in the same exercise of power. This would have the common sense consequence that provided everyone understood exactly what was happening, the Court could over a period make determinations about a number of different items of property all in the one process of resolving the division of property between the parties.
[7] (1980) FLC 90-902

While it is impossible, at this remove, to determine what was in the minds of the parties (or indeed in my mind) at the relevant time the Orders were made, it seems from the formulation of the judgment and from the transcript of the addresses of counsel and my comments, that the parties and I had in mind that the distribution of property I made at the time of the Orders would not be revisited subsequently except as a factor in determining how the remaining property (as it would then have become) would be distributed in due course.
This would suggest that although there was a long delay between the making of the initial orders and the cutting of the final slice of the salami it was all part of the same process.
Such an interpretation however must necessarily fail to bring the matter within the exceptions to s 5(3) of the Family Law Legislation Amendments (Superannuation) Act 2001. Notwithstanding that the order that had been made was not a substantive order about the division of property but an order under s 79(5) it would nevertheless on a strict and literal interpretation of the provisions of s 5(3) constitute an order made pursuant to s 79. This may not have been the intention of the Parliament but in my opinion is a proper construction of the statutory provision. If that is so then a splitting order could not be made in relation to the superannuation of the husband but the division of the superannuation which had been converted into property would be possible.

Further Consideration Of Whether The Orders Were Partial or Interim Orders

A primary determination for me to make as urged upon me by the parties was whether the orders I made on 18 August 1999 were partial or interim property orders.
The significance of this question is that under s 4 of the Family Law Legislation Amendment (Superannuation) Act 2001, a s 79 order is defined as
…an order (other than an interim order) made under section 79 of the Family Law Act.
Section 5 of this Act relevantly provides,
(2) Subject to subsections (3) and (4), the superannuation amendments do not apply to a marriage if a section 79 order, or a section 87 agreement, is in force in relation to the marriage at the startup time.
The term ‘marriage’ also refers to a void marriage. The start-up time for these sections was the time at which Schedule 1 of the Act commenced, which was 28 December 2002.
There are a series of indicia that the orders in this case were intended to be a partial property determination under s 79. These include: completing the four-stage determination and dividing the parties’ property except superannuation on a final basis, which her Honour Justice Lawrie noted is “generally seen as steps in the final determination of a matter”, and removing the matter from the pending cases list. Although as the Full Court observed in Harris & Harris (supra) the making of interim orders is an exercise under s 79 and must be performed within those parameters, with the limited evidence which is before the Court.
However, there are also a series of indicia which indicate that the orders in this matter were only intended to be an interim distribution. These include: the use of the term ‘interim’ in relation to at least some of the orders and more specifically, the adjournment under s 79(5) to allow the husband’s superannuation to vest.
This matter is further complicated by the determination in 2005 of Coghlan & Coghlan[8] by the Full Court where it was held by the majority constituted by Chief Justice Bryant, Finn and Coleman JJ that superannuation interests are a different species of asset from ‘property’ per se and should not necessarily be treated in the same way.
[8] (2005) FLC 93-220

Partial and Interim Orders

In 1983, the Family Law Act 1975 was amended to expressly permit the making of interim property orders under s 79(5), (6) and (7). According to Young J in his detailed analysis of the same provisions in PAJ and GMJ,[9] the subsections were introduced following the recommendations of the Joint Select Committee on the Family Law Act 1975. He cites Recommendation 33 as providing:
33.That the Family Law Act be amended to give a discretionary power to the Court to defer the making of a final order in property proceedings until superannuation benefits have been received, and where necessary to make an interim order.[10]
[9] [2003] FamCA 751
[10] At page 7
The distinction between an interim and a partial order was drawn by Nygh J in Burridge (supra), prior to the introduction of this legislation, where his Honour considered whether or not he could make a payment to the wife from a trust in which the proceeds of the sale of the matrimonial property were being held, prior to an order being made under s 79 of the Act, and if so, under which section or sections it could be made, specifically contemplating s 114. His Honour determined that he could only make one order under s 79, and that once such an order was made, it could only be altered in the limited circumstances set out in s 79A, citing Taylor & Taylor.[11] His Honour stated that as such, “[t]here cannot therefore be such a thing as an “interim property order””.[12] He further noted that if he made a partial order in relation to the fund, it would “…insofar as it disposes of the moneys in the fund, settle the rights of the parties once and for all, but the balance of the fund remains as yet unaffected by any order under sec. 79.”[13]
[11] (1977) FLC 90-226
[12] At page 75-679
[13] At page 75-679
Nygh J described a partial order as being a “salami order” whereby the sausage is sliced and distributed to the extent that there are no disputing claims, leaving the fate of the balance to be determined later.[14] His Honour then went on to state that “[u]nless there exists a principle in relation to sec. 79 that property applications must be made once and for all, it is my view possible to make such an order under [s 80] para k, if the justice of the case so requires.”[15] Although he had earlier noted that s 80 is not an independent source of power, and can only be utilised by the Court in its exercising its powers under Part III.[16]
[14] At page 75-679
[15] At page 75-679
[16] At page 75-679
Section 80(k) relevantly provides that
The court, in exercising its powers under this Part, may do any or all of the following:
…
(k) make any other order (whether or not of the same nature of those mentioned in the proceeding paragraphs of this section), which it thinks it is necessary to make to do justice
Nygh J determined that he could make the partial property order as sought by the wife under s 79 in conjunction with s 80. In Nygh J’s analysis, a partial order is not a final order under s 79 because “…the same application remains before the court and the court does not purport to deal with the entirety of the property issues before it.”[17]
[17] At page 75-679
The distinction drawn by Nygh J was then discussed by the Full Court of the Family Court in Harris (supra) where their Honours stated,
The distinction which Nygh J drew in Burridge between an “interim” and a “partial” order appears to be that an interim order is one which operates until the final hearing but may then be submerged into the final order whereas a partial property order complete in itself but dealing with part only of the property and not intended to be a final determination of the proceedings.
We do not doubt that the Court has power in a proper case in s. 79 proceedings to make what may be conveniently described as an interim order, that is an order dealing with some of the property of the parties prior to the final hearing. We do not consider that it is necessary to draw a distinction in terminology between an “interim” order and a “partial” order.
In making interim property orders, their Honours in the Full Court in Harris (supra) held that the following matters must be considered:
(1) The exercise of the power should be confined to cases where the circumstances presented at that time are compelling…
(2) It is an exercise of the s. 79 power. Consequently it must be performed within those parameters. Since it is not the final hearing the Judge is unlikely to have the final findings, but the exercise must fall within that general framework and the material available at the time.
(3) Of necessity it is likely to be a somewhat imprecise exercise… [and] must be exercised conservatively and the Judge must be satisfied that the remaining property will be adequate to meet the legitimate expectations of both parties at the final hearing, or that the order which is contemplated is capable of being reversed or adjusted if it is subsequently considered necessary to do so. It is for this reason that we doubt whether the distinction which Nygh J drew between interim and partial orders is necessary or desirable.[18]
[18] At page 79-930
However in Bassi and KD Sales Force Specialists Pty Ltd v Maas[19] the Full Court went on to state that the Court’s powers “…under s 79(6), to make property orders where it makes an order under s 79(5) adjourning proceedings to await the occurrence of a significant financial event such as the receipt of superannuation, is not confined to making “interim” orders.”[20] The Court further went on to state that in Harris (supra), although the Full Court did not consider it necessary to draw the distinction which Nygh J did, “…it did not decide that there is no such distinction, or that it is inappropriate to draw it in a proper case.”[21]
[19] (1999) FLC 92-867
[20] At page 86-265
[21] At page 86-265
In the case of Bassi (supra), the Full Court found that the matter before them was such an appropriate case. The trial Judge had adjourned the property proceedings until the husband’s superannuation became available for distribution. The Full Court found that
[t]here is nothing in his Honour’s judgment to suggest that they are intended as interim orders… On the contrary, it is clear from several passages that his Honour’s intention was to make final orders in respect of everything expect the husband’s superannuation entitlement and to adjourn only so much of the proceedings as related to the wife’s claim to receive some further provision out of that entitlement.[22]
It is important to note that both Harris (supra) and Bassi (supra) were determined prior to the passing of the Family Law Legislation Amendment (Superannuation) Act 2001.
[22] At page 86-265
In Hickey & Hickey (supra) Chisholm J made partial property and children’s orders by consent, and sent a Case Stated to the Full Court seeking answers about how superannuation should be treated by the Court.
In the course of its response, the Full Court stated,
… but for the operation of s. 79A, the Court has power to make only one order for property settlement pursuant to the provisions of s. 79. Thus, any such order inherently has the effect of finally disposing of all issues relating to the disclosed property of the parties.
…
In our view, an order made pursuant to the provisions of s. 79 was correctly described by Senior Counsel for the husband as a “once and for all” proposition. Although there may be partial or interim orders (s. 79(6) of the Act) ultimately there is only one exercise of power under s. 79 in respect of the property of the parties, even though that single exercise of power may be reflected in a complex order of many paragraphs or clauses, each dealing with a different item of property and some dealing with questions of implementation. It may be that some items of property are not dealt with in paragraphs or clauses of the order as it is not proposed that there be an alteration of interest in such property. However, the single exercise of power prevents a further application in relation to both specified and non specified items of property except pursuant to the provisions of s. 79A.[23]
[23] At page 78-387
Justice Young in PAJ and GMJ (supra) went on to state the views of Watts, Bourke and Taussig QC in Chapter 5 of “Super Splitting On Marriage Breakdown” where they stated in relation to interim orders,
The more difficult cases is where the court may have dealt with some of the property but not all and, in so doing, has made an order under sec 79. This would include those cases where the court may have dealt with all the matrimonial property save and except any superannuation having regard to the fact that the superannuation amendments were imminent, the definition of a section 79 order in the amendments carefully restricts interim orders. Provided it can be shown that the way the court has dealt with the other property is by way of an interim order, then there is a case that the new super splitting laws apply.
However, an interim order is made under sec 79 and is subject to all the requirements under that section, including the requirements under sec 79(2) that an order should not be made unless it is just and equitable to do so. Further, the court will also need to bear in mind that there needs to be sufficient other property after the making of an interim order that, in the final proceedings, the court is able to make an order which in a global sense does justice and equity between the parties.[24]
[24] At page 7

Section 79(5) Adjournments

Subsection 79(5) specifically provides for the adjournment of proceedings if the Court is of the opinion
(a) that there is likely to be a significant change in the financial circumstances of the parties to the marriage or either of them and that, having regard to the time when the change is likely to take place, it is reasonable to adjourn the proceedings; and
(b) that an order that the court could make with respect to:
(i)the property of the parties or either of them;…
if that significant change in the parties circumstances occurs is more likely to do justice as between the parties to the marriage than an order that the court could make immediately with respect to:
(iii)the property of the parties to the marriage or either of them;…
the court may, if so requested by either party to the marriage… adjourn the proceedings until such a time, before the expiration of a period specified by the court, as that party to the marriage… as the case may be, applies for the proceedings to be determined, but nothing in this subsection requires the court to adjourn any proceedings in any particular circumstances.
Further subsection 79(6) provides that where a Court proposes to adjourn proceedings under subsection 79(5), it may make
… such interim order or orders or such other order or orders (if any) as it considers to be appropriate with respect to:
(a) any of the property of the parties to the marriage or of either of them…
A s 79(5) adjournment is not an adjournment in the ordinary sense, as considered by the Full Court in Grace & Grace.[25] In that case, the Court stated:
[25] (1998) FLC 92-792
…the exercise of the discretion to adjourn pursuant to s 79(5) has very serious consequences for the actual subject matter of the dispute and does not just relate to the conduct of the hearing. It is therefore a different type of “adjournment”…[26]
[26] At page 84-888
…
…we would conclude this discussion by observing that it is perhaps unfortunate that the term “adjournment” is used in s 79(5). This is because the term “adjournment” in this context may better be described as a “deferral” of the hearing of the application until the happening of one or more specified events which impact upon the capacity to conduct the property settlement determination required by s 79.
The term “adjournment” connotes that the hearing has commenced or is due to commence within a relatively short time. Accordingly, the property identified as forming the basis of the hearing when commenced before adjournment would usually remain the subject matter for orders. Yet, clearly, the purpose of s 79(5) is to not give rise to an expectation among the parties or the Court that they are concerned with the property available for distribution at the time of the s 79(5) application. Rather, the purpose of an order under s 79(5) is to defer the step of ascertaining the property pool for distribution to a defined future point in time.[27]
[27] At page 84-889
There is no time limit under which an adjournment under s 79(5) can occur. For example, in Martin & Martin,[28] the Full Court held that a s 79 claim could be adjourned for nine years, and in Carson & Carson,[29] the Full Court did not disapprove of Smithers J’s decision in O’Shea & O’Shea[30] to adjourn proceedings for some twenty years, given the balancing between disadvantage to the husband as opposed to injustice to the wife if an adjournment had not have been granted.
[28] (1986) FLC 91-737
[29] (1999) FLC 92-835
[30] (1988) FLC 91-964
However, the Full Court did observe in Robson & Robson and Ors[31] that
…orders for adjournments made under ss 79(1B) or (5), or interim orders made under s 79(6), or orders altering interests in property made after the death of a party to the marriage made under s 79(8), must all be capable of being varied or set aside under s 79A, since all such orders would come under the description of “an order made... under section 79”.[32]
[31] (2003) FLC 93-145
[32] At page 78-421
In Van Essen & Van Essen,[33] the Full Court was confronted by an application for leave to appeal by the husband against an order of a trial Judge who adjourned the wife’s application for property settlement under s 79 until the sittings of Parliament in 2000, where it had become apparent that legislation would be introduced which would enable the splitting of superannuation. In upholding the appeal, the Full Court stated that the relevant law regarding adjournments was that set out in Meggitt Overseas Ltd and Ors & Grdovic[34] at 532, where Mason P, with whom Sheller and Beazley JJA agreed, stated:
These basal principles have been applied in a line of cases denying that it is proper to grant a contested adjournment of legal proceedings for the purpose of enabling one party to take advantage of a proposed amendment of the enacted law. In Ramsay & Aberfoyle Manufacturing Co (Australia) Pty Ltd (1935) 54 CLR 230 at 253, Starke J said:
‘Courts of law, however, can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future.’
[33] (2000) FLC 93-028
[34] (1998) 43 NSWLR 527
However, in 2001, Chief Federal Magistrate Bryant (as she then was) distinguished Van Essen & Van Essen (supra) in Versace & Armstrong,[35] following the decision of Strickland J in T & T[36] where his Honour determined that because the legislation had been passed but had not come into effect, adjournments could be made either under the general power of adjournment or under s 79(5) until the provisions of the Family Law Legislation Amendment (Superannuation) Act 2001 came into effect to enable superannuation to be split.
[35] [2001] FMCAfam 231
[36] [2001] FamCA 866
None of these latter decisions bear upon the validity of the adjournment order in this matter. The adjournment was not expressed to be about the possibility or even certainty of amending legislation. The future event was the husband’s becoming entitled to his superannuation. This was independent of legislative amendments.
The distinction drawn in Grace (supra) between adjournment and deferral is in my opinion more apparent than real. It seems from their Honours’ dicta quoted above that in either event, their Honours saw the deferred or adjourned hearing as a resumption of the previous hearing.

Only One Final Order?

Ordinarily a Court considering property division between parties to a marriage should take the assets and liabilities of the parties as at the date of trial. This proposition long the subject of settled authority might logically (not necessarily in accordance with authority) be subjected to some qualifications. A number of cases and some legislative enactments attest to the need for qualification of the principle if justice and equity is to be done to the parties in dispute.

Equally, it has been long established that a Court may make but one final determination of the dispute and of the division. This is acknowledged to be so except in the limited circumstances set out in s 79A - where orders made may be set aside.
Both of the above principles are grounded in the undeniably desirable requirement that there should be an end to litigation and that both parties should be able to get on with their lives free from the threat of re-litigation or of serial applications.
However, justice would suggest that it is undesirable for the principles to be inviolate. Obvious examples of qualifications can be found in the principles developed by this Court in relation to property dissipated in one way or another between separation and hearing (Townsend & Townsend[37]; Chorn & Hopkins.[38]) It is reasonable perhaps, to see these situations as pre-emptive distributions to one party or the other and the consequential ‘add-back’ as therefore only a bookkeeping correction to enable the fundamental principle to apply.
[37] (1995) FLC 92-569
[38] (2004) FLC 93-204)
In circumstances where there has been a substantial or significant delay between separation and hearing, the parties or either or each of them may acquire property not in existence at separation or either or both may make further or different contributions to that property assessed as being contributions when the parties were together. Generally speaking these variations can be adjusted for by treating the assets so contributed to on what has sometimes been described as an “asset-by-asset” basis.
It can also be that events will occur after the matter would ordinarily come on for trial which will operate to the advantage or disadvantage of one of both parties. It is axiomatic that the vagaries of life may treat each of the parties differently but there may be possibly very significant events which will affect either or both parties which are for all practical purposes definitely predictable but which may not occur within a time frame for which an ordinary adjournment of the hearing would be indicated as reasonable.
Logic would suggest that in such circumstances a Court should divide up everything apart from the property to be future generated. This denies the once only basic principle. It leaves as a question (not necessarily all that difficult to answer) whether: the original division should (in some way) be taken into account in dividing the future-generated property and whether any account be taken of what has happened to the parties or to the property previously divided since the last division.
The legislature has dealt after a fashion with the predictable future-generated property. The language in s 79(5) is not as felicitous as it might be (cf Grace & Grace) but is intended to deal with this situation.
Leaving aside the legislative anomaly of section 79(5), there does not seem to be an compelling reason in the legislation for orders to be made on one and one only occasion. There is every reason ordinarily not to permit re-litigation. Very long deferrals or adjournments would also be contra-indicated for the reasons examined above. However just as courts frequently have many sub-orders or placita in a section 79 “order” so there does not appear to be any reason in principle why the exercise of the power to make orders dividing property might not be exercised as part of a single unified process but not at the same time. In this context section 79 (5) might be seen as the exemplification of this principle or a legislative intervention to repair what was perceived to be a defect in the law. The latter interpretation affirms the once only principle. It seems unlikely that the legislature had such subtleties in mind and I am not prepared to draw such a conclusion from the Act.

Why Not Set Aside the Orders?

It would be possible for me to set aside the orders “by consent”. The consequences of doing so I have already discussed. However, I have also drawn attention to the fact that to determine that the parties consented to the setting aside of the orders would in large measure be an artificial construction of what each of them has said that he or she wants. I am not prepared to determine that the parties consent to the orders being set aside.
I have also suggested above and reiterate that the wife’s application that the matter be dealt with under s 79A(1)(b) on the basis that the orders are impracticable is in my opinion misguided. The orders are practicable although the consequences of that occurring may not be what the parties either wanted or intended individually or collectively at the time that they were made.
That would leave, if I were to consider the setting aside of the orders, the application of s 79A(1)(a) and the catch all phrase at the end thereof “or any other circumstance”.
I have previously commented in my reasons that there is an artificiality in not construing those words ejusdem generis with the preceding factors set out in the subsection. I accept that there is authority for doing so in an appropriate case.
In this matter the event that was responsible for the “adjournment” was foreseen by the parties in the Court even if the legislative consequences flowing from the amendments between the date of the original hearing and the reactivation of the matter in the Court were not. In my opinion, given that there are other remedies and that the matter can proceed and be finally determined and that there is a specific legislative provision (s 79(5)) the orders and their consequences do not constitute a miscarriage of justice.

WHERE TO THEN?

The internal structure of the Orders and the judgment lends credence to the primary orders dividing the property as it then was on a final basis. The four stage approach, the absence in such orders of a specific reference to the orders’ being “interim” and the confining of the use of the words “interim orders” to specified orders (relating to the future property) to matters relating to that property all support that the intention was to make, what Nygh J identified in Burridge (supra) as partial orders and for the remaining issues only to be resolved although obviously in the light of future circumstances including the effects of the first division.
The analysis I have undertaken above does not lead me to conclude that such an approach would be contrary to logic or to authority. After an initial hesitation in Harris & Harris (supra) (an admittedly differently constituted Full Court) in Bassi (supra) has affirmed the possibility of partial orders in appropriate circumstances.
The consequences of adopting that approach in this matter would be to deny the wife access to a splitting order but would not prevent the division of the superannuation which has since become property and the judge’s doing so taking into account (under section 75(2) the husband’s continuing income stream.
I have suggested some relatively proximate dates for completion of this matter. However, because of a number of factors not the least the comparative novelty of the matters in issue, it would be wise for me to wait until the relevant appeal period has expired. It would seem that an appeal may require leave. Technically this is the resolution of an interim (or perhaps interlocutory) application, but without in any way attempting to pre-empt the decision of their Honours in the Full Court it seems likely that if leave were required and sought it would be given.
If the matter is to proceed to conclusion before me on the basis I have indicated above, there will need to be up-dating evidence about the parties’ superannuation, their present financial circumstances and other matters relevant to my considerations under section 75(2). Their financial circumstances may be substantially presented through a single balance sheet setting out assets liabilities, income and resources. If there is to be no appeal it should be possible for all the relevant information to be assembled in time for the days I have reserved.
I will make directions as soon as the parties’ intentions are clear but in the meantime my Orders are that:
1.The wife’s application filed 21 February 2002 (as subsequently amended) is dismissed.
2.The husband’s application reflected in his response most recently amended on 13 December 2004 is dismissed.
3.The finalisation of the hearing of matters relating to the division of the property of the parties is set down for hearing on a date to be notified to the parties as soon as possible after the expiration of the time for filing an appeal against these orders or the delivery of judgment in the appeal.

I certify that the preceding eighty nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Associate:

Date: 12 November 2007

Endnote 1

Further Additional Further Amended Application for Final Orders (filed 9 March 2005)

1.That pursuant to section 79A(1)(b) of the Family Law Act (1975) leave be granted to the parties to set aside Orders dated 18 August 1999 made by Justice Faulks in the Family Court at Canberra in proceedings number CA 1684 of 1997.
2.By way of alteration of property interests pursuant to pursuant to section 79 of the Family Law Act (1975) the following orders be made.
2.1.In accordance with s 90MT(1)(b) of the Family Law Act (1975).
2.1.1the wife is entitled to the specified percentage, being 100% of each splittable payment made out of the husband’s interest in the superannuation fund held with Colonial First State (account number 0600 0631 5280);
2.1.2the husband’s entitlement is correspondingly reduced.
2.1.3Order 2 has effect from the operative time.
2.1.4The operative time is seven (7) days following the service of these orders on the Trustee.
2.1.5Colonial First State, being the Trustee of the Fund (“the Colonial First State Trustee”) do all acts and things and sign all such documents as may be necessary to:
2.1.5.1.Calculate, in accordance with the requirements of the Family Law Act (1975)., the entitlement created in paragraph 2.1 of these Orders; and
2.1.5.2.Pay the entitlement whenever a splittable payment becomes payable.

2.2.That paragraphs 2.3 to 2.6 (inclusive) of these Orders are binding on the Trustee of the Commonwealth Superannuation Scheme (“the CSS”).
2.3.That the base amount allocated to the wife in these proceedings out of the interest of the husband in these proceedings in the CSS is $110,000.00 (“the base amount”) being seventeen (17) per centum of $648,576.00 being the gross value of the husband’s interest in the CSS as at 30 July 2004 ($648,576.00).
2.4.That pursuant to s 90MT(1)(a) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable in respect of the interest of the said husband in the CSS the wife shall be entitled to be paid an amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.
2.5.That Order 2.4 has effect from the operative time.
2.6.The operative time for the purposes of Order 2.5 of these Orders is four (4) business days after the date of service of these Orders upon the Trustee of the CSS.
2.7.That unless otherwise specified in these orders, the husband be solely entitled to the exclusion of the wife to other property and other financial resources of the husband including:
2.7.1          any real property;
2.7.2          any monies standing to the credit of the husband in any bank account;
2.7.3          his superannuation entitlments
2.8.That unless otherwise specified in these orders, the wife be solely entitled to the exclusion of the husband to other property and other financial resources of the wife including:
2.8.1any real property;
2.8.2any monies standing to the credit of the wife in any bank account;
2.8.3her superannuation entitlements.

Endnote 2

Amended Response to an Application for Final Orders (filed 3 December 2004)

1.That the Wife’s Application be dismissed.
2.That the Wife provide to the Husband access to family photographs and the Husband shall arrange to copy such photographs at his expense and return them to the Wife.
3.That the parties keep all property currently held in their name and/or their possession, with such property including but not being limited to superannuation entitlements, real property, cash at bank, rolled-over lump-sum deposits and interest accrued, chattels and personal effects.
4.That Orders 11.1, 11.2, 12 and 13 of the Orders made on 18 August 1999 be vacated.
5.That the Wife pay the Husband’s costs of and incidental to the Application.
6.