GYDE & BRITTON

In *Gyde & Britton*, the Family Court of Australia considered an application by the parties to vary final property settlement orders made in 2000. The dispute centred on the superannuation interests of the parties, which were dealt with under the *West & Green* orders prevalent at the time. The parties sought to set aside the existing superannuation orders and substitute them with a superannuation splitting order, as permitted by subsequent amendments to the *Family Law Act 1975* (Cth).

The primary legal issue before the Court was whether it had the power to vary or set aside the 2000 orders, particularly in light of the *Family Law Legislation Amendment (Superannuation) Act 2001* (Cth), which did not apply retrospectively to finalised settlements. The Court had to determine if the grounds for variation under section 79A of the *Family Law Act 1975* were met, specifically whether it was impracticable for the existing orders to be carried out and whether it was just and equitable to set them aside. The Court also considered the limitations on varying or setting aside orders by consent when superannuation amendments were involved.

The Court reasoned that while the parties could not vary the order by consent to take advantage of the new superannuation regime, the grounds for variation under section 79A(1)(b) were satisfied. It found that due to significant changes in the parties' circumstances and the evolution of superannuation law over the two decades since the original orders were made, it had become impracticable to carry out the 2000 orders. The Court adopted a narrow interpretation of "impracticable," drawing on definitions from *Rohde & Rohde* and *La Rocca*, and concluded that the current superannuation landscape made the original provisions unworkable. The Court also considered and dismissed the ground of default under section 79A(1)(c), finding the alleged default regarding a life insurance policy did not meet the threshold for setting aside the order on that basis.

The Court ordered that the final orders made on 20 April 2000 be varied by deleting paragraphs 5.6 to 5.10. In substitution, the Court made a new order for a superannuation split in relation to the husband's superannuation interest in B Super Lump Sum Scheme, specifying the operative time and the wife's entitlement to a calculated amount. The parties were to retain their interests in any other superannuation funds.