Gresham & Gresham (No 4)
[2023] FedCFamC1F 1090
•19 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gresham & Gresham (No 4) [2023] FedCFamC1F 1090
File number(s): SYC 7914 of 2016 Judgment of: ALTOBELLI J Date of judgment: 19 December 2023 Catchwords: FAMILY LAW – PROPERTY – Implementation and enforcement of final orders – Orders made in the terms proposed by the husband for the wife to complete and sign the relevant documentation – s 106A order. Legislation: Family Law Act 1975 (Cth) ss 79A, 106A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 7.34, 11.01 11.04, 11.06, 11.07
Cases cited: Gresham & Gresham (No 2) [2023] FedCFamC1F 5 Division: Division 1 First Instance Number of paragraphs: 40 Date of hearing: 27 November 2023 Place: Sydney Counsel for the Applicant: Mr Havenstein Solicitor for the Applicant: Watson & Watson Solicitors Respondent: Litigant in person ORDERS
SYC 7914 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GRESHAM
Applicant
AND: MS GRESHAM
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
19 DECEMBER 2023
THE COURT ORDERS THAT:
1.The parties are to do all acts and things necessary, including executing all documents required to give effect to the following:
(a)The Respondent Wife (“the Wife”) shall within 28 days of making these orders, provide RR Pension with a certified copy of the following:
(i)her current address,
(ii)her Australian Passport, and
(iii)her Australian Taxation Number.
2.The Wife shall within 35 days of making these orders, elect either one of the following retirement schemes with RR Pension:
(a)BB Pension; or
(b)BO Pension,
and shall notify RR Pension in writing of same, and start the completion of the applicable form(s) with the assistance of RR Pension.
3.The Wife shall within 42 days of making these orders, post to RR Pension all signed and certified documentation as required by RR Pension to set up the Wife’s elected retirement scheme to the following address:
RR Pension
BP Street
City H, United Kingdom
4.The parties shall within 51 days of the making of these orders, agree in writing to a splitting date in accordance with Order 10 of the orders made on 10 February 2023, and amended on 19 May 2023.
5.In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then pursuant to s 106A, a registrar of the Federal Circuit and Family Court of Australia is hereby appointed to execute all deeds, documents and instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gresham & Gresham has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the orders that the Court has made in relation to Orders 2‑5 of the applicant husband’s (“the husband”) Application in a Proceeding filed 3 November 2023 (“the AIP”). Apart from the issue of costs, as at the time these reasons are being published, all other issues raised in the AIP have been determined, and there are no other extant applications. The substantive issue before the Court relates to the enforcement of orders altering property interests made by the Court on 10 February 2023 and subsequently amended on 19 May 2023.
BACKGROUND
Orders 2–5 of the AIP provides as follows:
[Country Q] Pensions
2The parties are to do all acts and things necessary, including executing all documents required to give effect to the following:
a.The Respondent wife shall within seven (7) days of making these orders, provide [RR Pension] with a certified copy of the following:
(i) her current address,
(ii) her Australian Passport, and
(iii) her Australian Taxation Number.
3The Respondent wife shall within fourteen (14) days of making these orders, elect either one of the following retirement schemes with [RR Pension]:
a. [BB Pension]; or
b. [BO Pension],
and shall notify [RR Pension] in writing of same, and start the completion of the applicable form(s) with the assistance of [RR Pension].
4The Respondent wife shall within 21 days of making these orders, post to [RR Pension] all signed and certified documentation as required by [RR Pension] to set up the Respondent wife's elected retirement scheme to the following address:
[RR Pension]
[BP Street]
[City H], United Kingdom
5The parties shall within 30 days of the making of these orders, agree in writing to a splitting date and in accordance with Order 10 of the Court Order dated 10 February 2023, amended on 22 May 2023 and 13 June 2023.
In effect, these orders attempt to enforce Order 10 made on 10 February 2023 (“Order 10”). This order states as follows:
Within 14 days of the date of the making of these orders, the Wife and the Husband shall do all acts and things (including initiating legal proceedings in [Country Q] if necessary) and complete all documents as to cause the [BB Pension …80] to be split between the Wife and the Husband so that the Wife receives an interest in the [BB Pension …80] in an amount equivalent to 30 per cent of the total value (at the time of splitting) of the Husband’s interest in the following:
(a) [BB Pension …80];
(b) [CC Pension …55]; and
(c) [V Pension] (“the Husband’s Pension Funds”).
In her Application – Enforcement filed 22 November 2023, which the Court confirmed was in effect the her Response to the AIP, the wife seeks the following orders:
a.That Order 10 made 10 February 2023, be vacated and be replaced with an Order that the Husband pay the sum of $1 ,300 ,000 to the Wife within 7 days of the making of this Order by payment to her Westpac Bank account [for security reasons the Bank account number is not on record]; or
b.In the alternative to Order 1 (a) above, that the Husband do all acts and things at his cost (including the incidence of any taxation payable in Australia or [Country Q]) to create a pension fund in [Country Q] for the Wife in the sum of $1,300,000 on the condition that such fund be accessible (by way of a cash transfer to the Wife's nominated bank account), forthwith .
c.That the Husband pay interest calculated as and from 24 February 2023 pursuant to the Court Rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 being 9.10% up to 30 June 2023 of 126 days being $324.11 per day and calculated at 10.35% from 1 July 2023 being $368.63 per day. On the sum of $1,300,000 standing at $94 ,657.80 as at 22 November 2023 together with $368.63 per day until paid.
d.Further and in addition to the interest payable in (c) above, the Husband pay interest at the Court rate on $1,300,000 until the Husband fully complies with Order (a).
e.In the event that the Husband has not paid the sum of $1,300 ,000 to the Wife or otherwise complied with Order (a) above by 11 December 2023, the Wife be hereby appointed the Husband's Trustee to take all steps with [RR Pension].
f.For the purposes of this Order, that the Wife be at liberty to provide [RR Pension] a copy of this Order and at the cost of the Husband, lodge all registrations and documents required by [Country Q] authorities necessary to give effect to this order.
g.That the Court direct the parties to do all acts and things necessary to issue a letter rogatory on [Mr Gresham] to the [Country Q] Authorities in the form annexed and marked "G".
2. Further, any other order as this Court deems necessary in order to implement these Orders.
3. That the Husband pay the Wife 's costs of and incidental to this enforcement application fixed in the sum of $7,500. Such sum to be paid within 7 days.
REASONS FOR JUDGMENT PUBLISHED 10 FEBRUARY 2023
My reasons for judgment for the final hearing were published on 10 February 2023 as Gresham & Gresham (No 2) [2023] FedCFamC1F 51 (“my reasons for judgment”). It is of some utility to reproduce items 71–73 of the final balance sheet, as it relates to the present issues before the Court:
Ownership Description Asset SUPPERANUATION AND PENSION FUNDS Member Name of fund Type of interest Value 71 H BB Pension (£1,542,451) 2,892,096 72 H CC Pension (£591,107) 1,108,326 73 H V Pension (£345,992) NIL
The Court found that an overall alteration of property interests in favour of the wife in the amount of 60 per cent was just and equitable. The wife was given the opportunity to retain the family home (which she has done) and was allocated a 30 per cent interest in the total value of the husband’s pension entitlements in Country Q and the United Kingdom, implemented by allocating to the wife a greater share in the BB Pension (as the UK pension fund can only be accessed by the husband).
The Court observes that the pension fund entitlements together have a value representing more than one third of the value of the assets the husband contended were divisible between the parties (see [103] of my reasons for judgment). The Court concluded at [113] that both the Country Q funds constituted property for the purposes of the Family Law Act 1975 (Cth) (“the Act”), but the V Pension was a financial resource (see [126] of my reasons for judgment).
Several of the paragraphs in my reasons for judgment relate specifically to the pension entitlements and provide some context within which to assess the various contentions made by both parties in relation to the issue before the Court. These paragraphs (or the relevant parts thereof) will be summarised below.
At [105] the Court found that the husband will not voluntarily retire before the age of 60. At [145] the Court confirmed that the relevant values of the pension funds will be that at the date of splitting. Also at [145] the Court expressly recognised that the values identified by the parties in relation to their assets and resources may fluctuate by the time of realisation of the same. Moreover, the Court observed that the parties had multiple opportunities to apply for leave to adduce fresh evidence about valuation but declined to do so. Thus if, for example, there were taxation issues associated with the pension schemes the parties had ample opportunity to place that evidence before the Court. At [214] the Court found that the husband’s interest in the Country Q pension funds constitutes property and at [126] the Court found that the V Pension UK pension is a financial resource available to the husband. At [152] the Court explained that since the V Pension is a financial resource, it cannot be affected by an order altering property interests, but that a 60 per cent adjustment in the wife’s favour can nevertheless be implemented on the basis that the husband retains his financial resource and the wife receives a greater share of the Country Q pension funds. At [153] the Court recognised that accessing these funds will not only be delayed until such time as each party becomes entitled, but that there will also potentially be delay and costs in any event. At [160] the Court concluded that the wife would be given the opportunity to retain the family home and allocated a 30 per cent interest in the total value of the husband’s pension entitlements in Country Q and the United Kingdom, implemented by receiving a greater share of the BB Pension.
It is important to recognise that these are findings of fact made by the Court after a seven-day hearing. No appeal was filed, and an appeal is only possible now with leave. The wife was represented during the first five days of the hearing but represented herself on the last two days.
THE MATERIAL BEFORE THE COURT
In support of his case, the husband relies upon the following material:
(a)Application in a Proceeding filed 3 November 2023; and
(b)His affidavit filed 2 November 2023.
In support of her case, the wife relies upon the following material:
(a)Application – Enforcement filed 22 November 2023;
(b)Her affidavit filed 22 November 2023; and
(c)Her affidavit filed 1 September 2023.
THE APPLICABLE LAW
The AIP, which is, in essence, an enforcement application, is brought pursuant to ch 11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”). The relevant rules are set out as follows:
11.01 Enforceable obligations
(1) The following obligations and orders may be enforced under this Part:
(a) an obligation to pay money;
(b)an obligation to sign a document under section 106A of the Family Law Act (see Division 11.1.7);
(c)an order entitling a person to the possession of real property (see Division 11.1.7);
(d)an order entitling a person to the transfer or delivery of personal property (see Division 11.1.7).
(2)For the purposes of paragraph (1)(a), an obligation to pay money includes the following:
(a) a provision requiring a payer to pay money under:
(i)an order made under the Family Law Act, the Assessment Act or the Registration Act; or (ii) a registered parenting plan; or (iii) an award made in arbitration and registered under section 13H of the Family Law Act; or (iv) a maintenance agreement registered under subsection 86(1) of the Family Law Act; or (v) a maintenance agreement approved under section 87 of the Family Law Act; or (vi) a financial agreement or termination agreement under Part VIIIA of the Family Law Act; or (vii) a financial agreement under Part VIIIAB of the Family Law Act or a termination agreement under Part VIIIAB of the Family Law Act; or (viii) an agreement varying or revoking an original agreement dealing with the maintenance of a child under section 66SA of the Family Law Act; or (ix) an overseas maintenance order or agreement that, under the Family Law Regulations, is enforceable in Australia;
(b) a liability to pay arrears accrued under an order or agreement;
(c)a debt due to the Commonwealth under section 30 or 67 of the Registration Act;
(d) a child support liability;
(e) a fine or the forfeiture of a bond;
(f) costs, including the costs of enforcement.
(3)For the purposes of paragraph (1)(a), an obligation to pay money does not include an obligation arising out of costs for work done for a fresh application payable by a person to the person’s lawyer.
Note: For fresh application, see section 1.05. For enforcement of lawyer-client costs for a fresh application, see the State or Territory legislation governing the legal profession in the State or Territory where the lawyer practises.
(4)This Part applies to an agreement referred to in paragraph (2)(a) as if it were an order of the court in which it is registered or taken to be registered.
11.04 Who may enforce an obligation
The following persons may enforce an obligation:
(a) if the obligation arises under an order (other than an order referred to in paragraph (c))—a party;
(b)if the obligation arises under an order to pay money for the benefit of a party or child:
(i) the party or child; or
(ii)a person entitled, under the Family Law Act or Family Law Regulations, to enforce the obligation for the party or child;
(c)if the obligation is a fine or an order that a bond be forfeited—the Marshal or another officer of the court;
(d)if the obligation is a child support liability—a person entitled to do so under the Registration Act or the Assessment Act.
Note: The payee in relation to a liability may enforce an obligation (see section 113 of the Registration Act and section 79 of the Assessment Act).
11.06 Affidavit to be filed for enforcement order
If these Rules require a person seeking an enforcement order to file an affidavit, the affidavit must:
(a)if it is not required to be filed with an application—state the orders sought; and
(b)have attached to it a copy of the order or agreement to be enforced; and
(c) set out the facts relied on, including the following:
(i) the name of the payee;
(ii)the address of the payee, unless disclosing this address would compromise the payee’s safety;
(iii) the name and address of the payer;
(iv)that the payee is entitled to proceed to enforce the obligation;
(v)that the payer is aware of the obligation and is liable to satisfy it;
(vi) that any condition has been fulfilled;
(vii)details of any dispute about the amount of money owed;
(viii)the total amount of money currently owed and any details showing how the amount is calculated, including interest (if any) and the date and amount of any payments already made;
(ix)what other legal action has been taken in an effort to enforce the obligation;
(x)details of any other current applications to enforce the obligation; and (xi) the amount claimed for costs, including costs of any proposed enforcement; and
(d) be sworn no more than 2 days before it is filed.
Examples: For the purposes of paragraph (a), orders that may be sought include an Enforcement Warrant; a Third Party Debt Notice; an order for filing
11.07 General enforcement powers of court
The court may make an order:
(a) declaring the total amount owing under an obligation; or
(b)stating that the total amount owing must be paid in full or by instalments and when the amount must be paid; or
(c) for payment of a child support liability (see rule 11.03); or
(d) for enforcement of an obligation to pay money (see rule 11.05); or
(e) in aid of the enforcement of an obligation; or
(f) to prevent the dissipation or wasting of property; or
(g) for costs; or
(h)staying the enforcement of an obligation (including an enforcement order); or
(i) requiring the payer to attend an enforcement hearing; or
(j) requiring a party to give further information or evidence; or
(k) that a payer must file a Financial Statement; or
(l) that a payer must produce documents for inspection by the court; or
(m) dismissing an application; or
(n) varying, suspending or discharging an enforcement order.
Note: For the collection of child support, the court has general powers set out in section 111B of the Registration Act.
There was no contention that Order 10 was not an enforceable obligation for the purposes of r 11.01. The husband is entitled to enforce the obligation pursuant to r 11.04. No contention was made that the affidavit he filed in support did not comply with r 11.06, and even if it did not so comply, it was immaterial to the issue before the Court, and compliance with this order would have been dispensed with to the extent necessary. The orders sought by the husband are, in effect, orders in aid of the enforcement of an obligation pursuant to r 11.07(e).
THE EVIDENCE AND SUBMISSIONS SUMMARISED
The Court will attempt to summarise the evidence and submissions made by the wife, and on behalf of the husband. In the wife’s case, and meaning no disrespect to her, the Court will do the best it can to understand her case. She is clearly an intelligent and articulate woman, but at times was distracted by irrelevancy, and failed to appreciate the finality of the findings made at the hearing, and the consequent orders.
The husband’s case
The husband’s case was that the wife has not complied with the orders made on 10 February 2023 despite his attempts to facilitate their compliance, and that if the Court makes Orders 2‑5 as proposed in the AIP, based on the advice the husband has received, the orders could be implemented in terms of the intention behind Order 10.
In his affidavit filed 2 November 2023, the husband states that the “pension experts” that previously worked at O Company (who undertook the work associated with the parties’ move to Australia in 2015) set up their own company called BQ Company, and he engaged them on 17 May 2023 to produce a report after final orders were made to determine what he could or could not do, and what the implications would be regarding transferring his pensions to Australia. This report was received by him on 19 June 2023.
The husband subsequently asked them for further information to understand what the wife could or could not do following the splitting of his BB Pension, and what would be most “tax beneficial” to her. He deposed at paragraph 19 of his affidavit to receiving the following advice from BQ Company, which he provided to the wife along with two Australian Tax Office (“ATO”) rulings on 30 August 2023 (Tab 20 of the husband’s affidavit filed 2 November 2023):
19.1The Respondent wife is not liable for tax by the ATO on any growth to date since arriving in Australia. Please note UK pensions are not taxed on growth unlike Australian pensions.
19.2Post splitting of the [BB Pension] the Respondent wife could take access 30% of her share of [BB Pension] with immediate effect (now she is age 50) tax free. And has the potential to access another 45% in 12 to 18 months.
At paragraph 19 of his affidavit the husband states that BQ Company obtained an agreement from RR Pension that the wife’s share of his BB Pension could be transferred to either a BB Pension or BO Pension. He was advised that BO Pension has an early retirement age of 50 which allows for a lump sum payment of 30 per cent, and BB Pension has an early retirement age of 55 which allows for a 25 per cent lump sum payment. The husband states that he suggested to the wife in September 2023 that she contact BQ Company to have a discussion with them, but she has not done this to date.
The husband received further advice form BQ Company on 11 September 2023 regarding what funds the wife could access now from her share of his pension in accordance with Order 10, which indicated that she could receive approximately $400,000 with immediate effect and approximately another $680,000 in 12 to 18 months’ time, with the remainder remaining in an Australian superannuation fund. He forwarded this information to the wife on 7 October 2023.
At paragraph 22 of his affidavit, he states that it appears the wife believes he can access his pension with immediate effect tax free, which he says is incorrect. On 28 September 2023 he responded to an email from the wife where she requested he deposit $1.3 million into her bank account, and explained the process she needed to follow to access the BB Pension. He also granted access to RR Pension to correspond with the wife regarding the required transfer from the BB Pension and confirmed that RR Pension will act on Order 10.
On 27 April 2023 the husband deposes to receiving an email from RR Pension confirming that they can make a transfer to a “[Country Q] Pension Plan” in the name of the wife, but they are yet to hear from her or her advisors, and the wife needs to complete and sign particular paperwork to allow them to set up an account in her name. The husband states that the wife has failed to properly communicate with RR Pension to make arrangements to give effect to Order 10, as RR Pension confirmed they supplied the wife with the necessary documentation, but she has not responded to their requests despite several follow-ups. However, once the paperwork has been completed and the wife’s account created, they will be in a position to transfer and receive the required amount from the BB Pension in compliance with Order 10.
The husband indicates that on 12 September 2023 RR Pension provided him with the paperwork required to set up an account in the wife’s name, which provide the wife with a choice of two retirement schemes (BB Pension or BO Pension). As far as he is aware, the wife has not responded to RR Pension’s communication or engaged with them regarding the available options and the completion of documents.
He lists at paragraph 40 of his affidavit what steps the wife needs to take in order to facilitate compliance with Order 10 and indicates that thereafter RR Pension will be able to facilitate the wife receiving her 30 per cent split in accordance with Order 10. At paragraph 44 of his affidavit he outlines what needs to occur after the wife completes the necessary steps, including a valuation for all three pensions at the time of the splitting of the BB Pension, and the husband signing documents for the approval of the transfer of his interest in this pension to the wife. The orders proposed in the AIP implement his proposal.
The wife’s case
The wife’s case was that in effect, there are two issues with making Orders 2–5 of the AIP. Firstly, it is inconsistent with Order 10 made on 10 February 2022, that is, what the Court was intending to achieve through the final property orders. Secondly, the orders are impracticable based on the advice she received from a financial advisor she was instructed to work with on 15 May 2023, Mr BR from O Company.
In her affidavit filed 22 November 2023 the wife states that the husband has failed to disclose, or withheld, relevant information from herself and the Court, and that the husband did not provide BQ Company with the relevant information about the pensions or the Court orders made 10 February 2023. She states that since May 2023, she has been presented with five different options from experts briefed by the husband, none of which have asked her about her financial circumstances or provided “clarity about the establishment of costs and tax implications for me in [Country Q] and Australian [sic] or if any tax is due up front or deducted from the lump sum”.
The wife indicated that she would not sign any of the documents sent to her by RR Pension because Mr BR instructed her not to sign them due to various issues such as “tax contamination”, “jurisdictional issues” and the fact that there is no “recognising fund” in Australia who will allow access to a pension fund at age 50. At Tab H of the wife’s affidavit filed 1 September 2023 (an email between Mr BR, the husband and the wife dated 20 July 2023) Mr BR states that the parties “should not sign a document that follows the Court Order as it stands”. At Tab E of the wife’s affidavit filed 25 November 2023 (an email between Mr BR and the wife dated 18 November 2023) Mr BR calls the husband’s new proposal from BQ Company “dangerous” and later says that she should “not sign anything until you have had tax and legal sign off”. She also asserts at paragraphs 27–29 of her affidavit that the husband’s proposal is “an unsatisfactory implementation of Order 10” and “not proper application of Order 10”.
Counsel for the husband stated that while there is no doubt there are complexities that sit behind the effect of Order 10 if or when it does take effect, there are some relatively simple processes that can occur immediately which will split the pension fund (and enable the wife to receive those funds), and that the parties can deal with the more complex consequences of that split as and when they arise. The wife instead seeks that the husband pay her the sum of $1.3 million, either out of the proceeds of sale from the matrimonial home (G Street, City H United Kingdom) or from, in part, the 25 per cent lump sum she believes he may access now from his Country Q pension and from the settlement sum he received. She indicates at paragraph 32 of her affidavit filed 22 November 2023 that if the husband opposes this order, she will likely lodge an application under s 79A of the Act to amend Order 10.
DISCUSSION
A complicating factor in this matter is the different advice each party claims to have received.
The husband submits that he has received advice from BQ Company that after the splitting of the BB Pension the wife could access 30 per cent of her share with immediate effect (now that she is age 50) and that she has the potential to access another 45 per cent in 12 to 18 months, with the remainder remaining in an Australian superannuation fund. The husband states that RR Pension agreed that the wife’s share of the BB Pension could be transferred to a BB Pension or BO Pension. The wife needs to sign certain documentation in order for this to occur. This information is contained largely in Tabs 20–21 of the husband’s affidavit filed 2 November 2023 and was forwarded to the wife by at least 7 October 2023.
The wife submits that she has received opposing advice from Mr BR, whom she was instructed by the husband’s counsel to contact on 15 May 2023. An email from Mr BR to the wife dated 20 July 2023 (Tab H of the wife’s affidavit filed 1 September 2023) in summary states that he cannot advise signing any agreement to split based on Order 10 as it stands, and that a more beneficial course of action would be for a 70:30 lump sum payment in the husband’s favour (with no tax liability) or a 70:30 split of the pension component in the husband’s favour (with possible tax implications). In an email received by the wife from Mr BR the next day, he outlines five different schemes to split the pension. On 18 November 2023, the wife received an email from Mr BR regarding the husband’s proposal based on advice from BQ Company (Tab E of the wife’s affidavit filed 22 November 2023) which said that the proposal is “dangerous”, involves too many hoops, excess tax contributions and delays, and that she should not sign anything until she has had “tax and legal sign off”.
The Court observes, based on its experience, that the quality of expert advice received is only as good as the quality of information that is provided to the expert. The wife is representing herself. The husband is represented by experienced family lawyers who recognise their duty to the Court.
It is regrettable that the Court needs to intervene in, and adjudicate, this issue. Several times the observation was made by the Court to the parties, for their benefit, that the problem to be solved would result in greater benefit to both parties if they collaborated rather than competed. Mediation was suggested several times but would be futile without the consent of both parties, which was not forthcoming.
The differences in the expert advice purportedly given to each party is problematic, but not necessarily surprising given some of the complex issues involved. The Court has specifically considered its power to appoint an assessor pursuant to section 102B of the Act, “to help it in the hearing and determination of the proceedings, or any part of them, or any matter arising under them”. Rule 7.34(3) of the Rules states that the Court can only appoint an assessor on its own initiative if the parties have been notified and given a reasonable opportunity to be heard in relation to the appointment. That has not taken place. As it turns out, the Court does not believe that, on the facts of this case, it would resolve the differences in expert opinion without disproportionate delay and cost. The long litigious history of this matter leads this Court to conclude that the Court would need to intervene and adjudicate on almost every stage of the process of appointing an assessor. As r 7.34(2) of the Rules identifies, issues include the name of the proposed assessor, the issue about which assistance is sought, and the assessor’s qualifications skill and experience to give the assistance. Each of these issues would provide the parties to the present litigation with further opportunities to disagree. The Court foresees significant obstacles in reaching agreement about what evidence should be placed before the assessor.
The reality is that all the orders sought by the wife seek, in substance and effect, to vary the final orders made by this Court. There is no extant application under s 79A of the Act before the Court, so the Court lacks jurisdiction to make these orders. The wife’s Application – Enforcement filed 22 November 2023 must, therefore, be dismissed.
The wife contends that the orders sought by the husband do not enforce Order 10 made by the Court. Without minimising the potential complexity of implementing this order, a matter which seems accepted by all parties, it is simply not possible to be as dogmatic as the wife implicitly contends. It is by no means clear to the Court why, if the wife did all that were required of her by the orders, the result would not be the implementation of Order 10.
The wife’s proposed orders, even as impracticable as they are in this case due to lack of jurisdiction, at least reveal her preference to receive a lump sum of $1.3 million. The Court suspects that the wife’s underlying concerns may well relate to the values of the pension funds at the date of splitting, the exchange rate, and the potential taxation implications on her. Even if that were the case, however, evidence about all these matters should properly have been placed before the Court during the substantive hearing, and not now. The parties had ample opportunity to do so but did not. The uncertainty in relation to these issues was recognised in my reasons for judgment. Pension fund values, exchange rates, and even occasionally taxation rates fluctuate, in each case beyond the control of the parties. The ebb and flow of these factors was recognised in the final orders made.
The wife’s seemingly insistent belief that the husband is presently entitled to access his pension funds is directly contrary to a finding made by the Court, made with the benefit of all the evidence before it.
DETERMINATION
The Court concludes that, based on the evidence before it, the best chance of enforcing Order 10 is to make the orders proposed by the husband. In the circumstances of this case, to mitigate the possibility of further enforcement proceedings notwithstanding these orders, a s 106A order will be made, authorising a registrar of this Court to sign any documents that a party fails to sign in accordance with these orders. The Court recognises that these orders will be made shortly before the Christmas and New Year closure, and this might make it harder for the wife to seek advice. Accordingly, the time obligations in each of the orders will be extended by 21 days. Otherwise the orders are made in the terms proposed by the husband.
ORDERS MADE
Orders will be made in accordance with the husband’s proposed orders in the AIP, including the wife providing RR Pension with her address, passport and Australian Taxation number, electing an RR Pension retirement scheme and starting the completion of the applicable forms, posting to RR Pension all signed and certified documentation required by them to set up the elected retirement scheme, and the parties agreeing in writing to a splitting date.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 19 December 2023