[2003] FamCA 395
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal No. EA18 of 2003
File No. SYF5489 of 2002
AT SYDNEY
IN THE MATTER OF:
MICHELLE CAROLINE HICKEY
Wife
- and -
JAMES WILLIAM HICKEY
Husband
- and -
ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA
Intervener
REASONS FOR JUDGMENT
CORAM:Nicholson CJ, Ellis and O’Ryan JJ.
DATE OF HEARING: 7 April 2003
DATE OF JUDGMENT: 30 May 2003
APPEARANCES:
Mr Watts, Solicitor of Watts McCray, Solicitors, Level 4,
17 – 21 Macquarie Street, Parramatta NSW 2150, appeared on behalf of the wife.Mr Brereton SC, instructed by Coddington Lamont, Solicitors, Level 5, 140 Arthur Street, North Sydney NSW 2060, appeared on behalf of the husband.
Mr Bennett QC, Solicitor General for the Commonwealth, with
Ms Eastman of counsel instructed by the Australian Government Solicitor, 50 Blackall Street, Barton ACT 2600, appeared on behalf of the Intervener.
Catchwords: Family law – Case stated – Property – Superannuation – Power and desirability to make declarations under s.79 and s.90MS of the Family Law Act 1975 in relation to property and superannuation – Whether there can be a zero percent splitting order under s.90MT(1) – Whether necessary to determine the amount of a superannuation interest under s.90MT(2)(a) for a consent order where no splitting order is sought – Procedural fairness to trustees – Jurisdiction of registrars.
Introduction
This matter comes before this Court by way of a Case Stated by Chisholm J on
12 March 2003, as amended on 2 April 2003, pursuant to s.94A of the Family Law Act 1975 (Cth) (‘‘the Act’’). It raises questions in relation to the interpretation of the provisions of the Act which deal with superannuation interests in proceedings for property settlement. It also raises issues concerning the juridical basis of the practice of including declaratory provisions in consent orders in such proceedings.Subsections 94A(1) and (2) of the Act relevantly provide:
“(1) If, in proceedings in a court, being proceedings in which a decree or decision to which subsection 94(1) or (1AA) applies could be made, a question of law arises which the Judge and at least one of the parties wish to have determined by a Full Court of the Family Court before the proceedings are further dealt with, the Judge shall state the facts and question in the form of a special case for the opinion of a Full Court, and a Full Court shall hear and determine the question.
(2) The Full Court may draw from the facts and the documents any inference, whether of fact or of law, which could have been drawn from them by the Judge.”
The facts as set out in the Case Stated
The facts as set out in the Case Stated by Chisholm J are as follows:
“1. The parties married on 25 September 1992 and separated on 29 November 2001.
2. There are two children of the marriage namely:
A … born 18 May 1995
C ……
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CaseChat Overview and Summary
The court was required to determine the legal effect of a "catch-all" provision within a property settlement order made under section 79 of the *Family Law Act 1975* (Cth). Specifically, the court had to consider whether such a provision, which did not explicitly require any party to perform an action, could operate to alter the proprietary interests of the parties.
The Full Court reasoned that while orders under section 79 typically require a party to perform an action (in personam), the wording of section 79 itself suggests that an order can directly alter a party's interest in property without further action. The court noted that provisions like paragraph 5, which do not mandate any specific act, would not transfer ownership of property to a party not in possession. However, such a provision would effectively convert joint ownership into sole ownership in favour of the party who already possesses the property, thereby drawing a line in the sand and providing certainty for the parties. Section 80(1)(d) of the Act was also considered, which allows the court to order necessary steps to carry out orders effectively.
The court found that paragraph 5 of the Terms of Settlement, by its terms, did not require anyone to do anything, and therefore, it would not transfer ownership of property to a party not in possession. However, it would have the effect of converting joint ownership into sole ownership in favour of the party in possession.
Orders
Orders of the court
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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
During the course of the hearing before us paragraph 5 of the Terms of Settlement was described as a ‘catch all’ provision. The written submissions of the wife record:“The importance of being able to make specific and “catch all” declarationsIn the last twenty seven years there are many Full Court decisions; thousands of single instance decisions and tens of thousands of consent orders where individual declarations in relation to particular items or classes of property and so called “catch all” declarations, have been made. There is a very important and obvious reason why this has happened. People want to draw a line in the sand. They want certainty. They want to know that they can move on. In a piece of extra judicial writing, the Honourable Richard Chisholm has said:-“No doubt the charm of the traditional orders has been that parties can see at a glance that the orders tie up all loose ends. They exclude the possibility that one evening, over what PG Wodehouse would have called a thoughtful fireside, Alex’s ex-spouse might look back at the consent orders made two years previously, and think, “hang on, the orders said nothing about Alex’s shares – perhaps I can still claim half of them? and then there was the boat ...” If the traditional orders have been made … they can be dusted off and seen to dispose of any such ruminations”.” Section 79 enables the Court to make “such order as it considers appropriate altering the interests of the parties in the property … including an order requiring either or both of the parties to make … such settlement or transfer of property as the court determines.” As was pointed out in the written submissions of the husband, normally such an order is in personam and requires a party to do something, such as to execute a document to effect a transfer of property or cause property to be sold or to pay a sum of money. If an order made pursuant to s.79 requires a transfer of real property then the relevant paragraph or clause will ordinarily set out the obligations of the transferor necessary to effect a transfer of the title because of the requirement for registration and also to facilitate enforcement in the event of default by the transferor. Section 80(1)(d) contained in Part VIII of the Act provides:“(1)The court, in exercising its powers under this Part, may do any or all of the following:…(d)order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;” An order which provides for the transfer of an interest in property and which also requires that a deed or instrument be executed or that documents of title be produced or that other things be done as are necessary to make the transfer provision effectual at law will not be effective unless and until those requirements for a valid transfer have been fulfilled. Moreover, we accept the submission on behalf of the husband that the wording of s.79 suggests that a provision in a s.79 order may have the effect of altering a party’s interest in property without the need for any other enabling act of the party who has legal or equitable title. Thus, a provision in a s.79 order may be effectual, without more, to convert joint ownership of a chattel into sole ownership in favour of the party who has possession of it if no other formalities are required for transfer. A provision such as paragraph 5 of the Terms of Settlement, which by its terms does not require anyone to do anything, would not transfer ownership of property to a party who is not in possession of that property, but it would have the effect of converting joint ownership into sole ownership in favour of the party in possession.