FAMILY COURT OF AUSTRALIA
| GREETHAM & GREETHAM | [2010] FamCA 246 |
| FAMILY LAW – PRACTICE AND PROCEDURE – property settlement – where property settlement orders were previously made by consent between the parties prior to the commencement of the Family Law Legislation Amendment (Superannuation) Act 2001 (Cth) which introduced Part VIIIB of the Family Law Act 1975 (Cth) – where the parties could not consent to the setting aside of the order and take advantage of the provisions of Part VIIIB of the Act – application by the wife seeking to have the order set aside – whether the Court had the power to make the order – whether the order is ultra vires and invalid and therefore constitutes a miscarriage of justice – held orders within power and valid FAMILY LAW – PRACTICE AND PROCEDURE – application by the wife seeking that the previous orders be set aside pursuant to s 79A(1)(a) or alternatively s 79A(1)(b) – no basis for a finding of a miscarriage of justice pursuant to s 79A(1)(a) – not impracticable for the order to be carried out FAMILY LAW – PRACTICE AND PROCEDURE – REVIEW – where the wife sought in the alternative that the Court grant an extension of time to review the Registrar’s orders – whether the wife can seek a review of the Registrar’s orders in this case – whether the provisions of Part VIIIB can be applied to the hearing of the review – consideration of the provisions of the Family Law Legislation Amendment (Superannuation) Act 2001 – open to the wife to apply for a review of the Registrar’s decision FAMILY LAW – PRACTICE AND PROCEDURE – whether an extension of time should be granted to the wife to seek review of the Registrar’s decision – where the husband consents to the extension – extension of time granted FAMILY LAW – PRACTICE AND PROCEDURE – REVIEW – Registrar’s decision – where the husband consents to the discharge of the previous order and the substitution of a new order – where the effect of the order is to bring forward the time the wife can receive her entitlement – orders made in terms sought |
| Family Law Act 1975 (Cth) ss 37A(9), 79, 79A(1)(a), 79A(1)(b), 79A(1A) & 90MT Family Law Legislation Amendment (Superannuation) Act 2001 (Cth) s 5 Acts Interpretation Act 1901(Cth) s 15AA(1) Family Law Rules 2004 (Cth) r 18.08 & r 18.10 |
| Barker and Barker (2007) Fam LR 650 Gallo v Dawson (1990) 93 ALR 479 Hackett and Hackett [2007] FamCA 1618 Harris v Caladine (1991) FLC 92-217 Harrison and Harrison (1996) FLC 92-682 In the marriage ofMcMahon (1976) FLC 90-038 In the marriage ofTormsen (1993) FLC 93-392 Lehear and Lehear [2009] FamCA 645 M v M (2006) 37 FamLR 150 Molier and Van Wyk (1980) FLC 90-911 Mullane v Mullane [1983] HCA 4 RBH and JIH [2005] FamCA 226 Rohde and Rohde (1984) FLC 91-592 Sanders (1993) FLC 92-426 S and S [2007] FamCA 973 West and… |
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- Greetham & Greetham [2010] FamCA 246
- Case
- [2010] FamCA 246
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether it possessed the power to set aside the prior consent orders, whether those orders were *ultra vires* and invalid, and if there was a basis for setting them aside under section 79A(1)(a) or (b) of the *Family Law Act 1975* (Cth). Additionally, the court had to consider whether the wife could seek a review of the Registrar's orders, whether the provisions of Part VIIIB of the Act could apply to such a review, and if an extension of time should be granted for that review.
Strickland J found that the original consent orders were within the court's power and valid, and that there was no basis for a miscarriage of justice under section 79A(1)(a) or that the orders were impracticable to carry out. However, the court held that it was open to the wife to apply for a review of the Registrar's decision. Given the husband's consent to an extension of time, the court granted this extension. The court then set aside the Registrar's order of 2 January 1998 and substituted new orders, which included allocating a base amount from the husband's superannuation interest to the wife and specifying the process for payment and transfer of these entitlements, effectively bringing forward the time the wife could receive her entitlement.
Orders
Orders of the court
UPON NOTING
1.
That the value of the transferable benefit from the husband’s interest to the wife’s interest is calculated in accordance with Rule 7A.12 of the Superannuation Industry (Supervision) Regulations 1994.
2.
That pursuant to Rule 14F of the Family Law (Superannuation) Regulations 2001, any payments from the husband’s superannuation in the SAS Trustee Corporation made after the trustee has created a new interest in the wife’s name in SAS Trustee Corporation as contemplated in this order are not splittable payments.
3.
That the Trustee will be relieved of its obligations to calculate and split payments under this order in the event that the transferable benefits are transferred to a fund of the wife’s choosing in accordance with the requirements under the Superannuation Industry (Supervision) Regulations 1994.
IT IS ORDERED
1.
That the time for the wife to file an application seeking a review of the exercise of power by a Registrar on 2 January 1998 be extended to 10 December 2009.
2.
That the order made by the Registrar on 2 January 1998 be set aside and in lieu thereof the following orders be made:
(a) A base amount of THREE HUNDRED AND FOURTEEN THOUSAND ONE HUNDRED AND FORTY FIVE DOLLARS AND FIFTEEN CENTS [$314,145.15] is allocated as required by s 90MT(4) of the Family Law Act 1975 to the wife from the husband’s interest in his SAS Trustee Corporation Member no. 617867 entitlements.
(b) In accordance with s 90MT(1)(a) of the Family Law Act 1975:
(i) the wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(ii) the husband’s entitlement and the entitlement of such other person to whom a splittable amount may be made to payment out of the husband’s interest in SAS Trustee Corporation is correspondingly reduced; and
(iii) the trustee of the SAS Trustee Corporation shall do all such acts and things and sign all such documents as may be necessary to:
a. calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement for the wife created by clause 2(b) above of this order; and
b. pay the entitlement whenever the trustee makes a suitable payment out of the husband’s interest in the SAS Trustee Corporation.
(c) This order will have effect from the operative time and the operative time is the beginning of the fourth day on which a sealed copy of these orders is served upon the Trustee of SAS Trustee Corporation.
(d) After service of the payment split notice pursuant to Rule 8A.03 of the Superannuation Industry (Supervision) Regulations 1994, the wife shall do all such things and sign all such documents as may be necessary, including but not limited to exercising her request to Rule 7A.06(1) of the Superannuation Industry (Superannuation) Regulations 1994, for the rollover or transfer the transferable benefit out of the husband’s interest in the SAS Trustee Corporation to a fund of her choosing in accordance with Rule 7A.12 of the Superannuation Industry (Supervision) Regulations 1994, at the cost of the wife.
3.
That all applications be dismissed and removed from the active pending cases list.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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