Hughes & Hughes
[2012] FamCA 198
•4 April 2012
FAMILY COURT OF AUSTRALIA
| HUGHES & HUGHES | [2012] FamCA 198 |
| FAMILY LAW – ORDERS – interpretation of consent orders |
| Family Law Act 1975 (Cth) |
| de Lasala & de Lasala [1980] AC 546; [1979] 2 All ER 1146 Langford & Coleman (1993) FLC 92-346 Robertson and Wills (1982) FLC 91-215 Thwaite & Thwaite [1982] Fam 1; [1981] 2 All ER 789 West v Green (1993) F LC 92-395 |
| APPLICANT: | Ms Hughes |
| RESPONDENT: | Mr Hughes |
| FILE NUMBER: | MLC | 3708 | of | 2010 |
| DATE DELIVERED: | 4 April 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 2 February 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr P Indovino |
| SOLICITOR FOR THE APPLICANT: | Barbour Arnold & Cousins |
| COUNSEL FOR THE RESPONDENT: | Ms Ben-Simon |
| SOLICITOR FOR THE RESPONDENT: | Lynette Smyth Solicitor |
Orders
Pursuant to paragraph 3 of the Orders made 13 December 2000 the husband forthwith do all acts and things and sign all necessary documents to authorise and effect payment to the wife of all of his benefits and entitlements in the M Superannuation Fund and the D Superannuation Fund.
Pursuant to s106A of the Family Law Act 1975 (Cth) if the husband refuses or neglects to sign any document necessary to implement these orders within 14 days of a request in writing to do so, a Registrar of the Family Court of Australia is appointed to execute such document on behalf of the husband.
The wife cause a sealed copy of this order together with the reasons for judgment to be served on the M Superannuation Fund and the D Superannuation Fund as soon as practicable.
The wife’s application filed 8 December 2011 and the husband’s response filed 30 January 2012 be otherwise dismissed and removed from the list of cases awaiting hearing.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hughes & Hughes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 3708 of 2010
| Ms Hughes |
Applicant
And
| Mr Hughes |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The application before me this day is the wife’s application filed 8 December 2011. She seeks orders that the respondent husband forthwith sign all documents and do all things necessary to affect payment to her of all of his benefits and entitlements in the M Superannuation Fund and the D Superannuation Fund pursuant to paragraph 3 of the Order of this Court made on 13 December 2000. Further, or in the alternative, that a Registrar of this Court execute all deeds and documents in the name of the husband to give validity and operation to paragraph 3 of the said Orders, such further orders by way of enforcement as the Court deems necessary and that the husband pay the wife’s costs of the proceedings on an indemnity basis..
The husband by way of response to that application filed 30 January 2012 seeks that the wife’s application be dismissed and that she pay his costs on an indemnity basis.
Paragraph 3 of the Order of this Court made 13 December 2000 provides as follows:
That upon the husband becoming eligible to receive any further benefit or payment pursuant to any membership of any superannuation fund(s) to which either he or his employer or both have contributed including but not limited to the [M] SUPERANNUATION FUND and the [D] SUPERANNUATION FUND or such other ADF fund into which the [D] Superannuation Fund may be rolled over by [M] Management Ltd whatsoever (‘the fund”) or any retirement, termination, long service leave, sick leave or holiday payment on his termination or retirement from employment (‘the payments”) the husband or his legal personal representatives sign all documents and do all things necessary to effect payment to the wife forthwith of all these payments and entitlements due and payable to the husband from the fund (“the wife’s entitlements”).
The issue to be determined is how that paragraph of the orders should be interpreted.
The wife annexed to her affidavit a copy of the typed minute of proposed orders with hand written amendments which was signed by the parties and dated 13 December 2000. Paragraph 3 of those orders in its unamended form included what is sometimes referred to as a West v Green (1993) FLC 92-395 type formula. The wife’s entitlement, on the basis of the minute prior to its amendment, was calculated on the basis of that formula, which took into account a number of factors including the total number of years the husband had been a member of the fund and the length of the marriage. That handwritten minute of orders was amended to provide, as was ultimately ordered that, for payment to the wife of all of the payments and entitlements due and payable to the husband. There was no objection taken to the admission of the minute of proposed orders into evidence in fact both parties made submissions with respect to that document.
Put simply, it is the wife’s case that she is entitled, pursuant to the orders, to all of the funds held by the Trustees of the M Superannuation Fund. The husband’s case is that the wife is only entitled pursuant to the orders to any benefits that have accrued to the husband since the making of the orders, whether by way of contributions to superannuation, retirement leave, long service leave or leave payments.
Background
This matter first came before the Court on 1 March 2011 when the wife by her application filed on 17 January 2011 sought an order that the husband forthwith authorise the Trustee of M Superannuation Fund (“the Fund”) and the Trustee of the D Superannuation Fund to pay the wife all payments due to the husband arising out of paragraph 3 of the orders on 13 December 2000.
Paragraph 4 of the orders on 13 December 2000 required service of a copy of the orders upon the Trustees of the two superannuation funds and the husband’s employer together with an irrevocable authority from the husband to the Trustees and the husband’s employer requesting the Trustees and the employer to note the wife’s entitlements pursuant to the orders and facilitating the payment to the wife of any amount to which she was from time to time entitled pursuant to the orders.
In dismissing the wife’s application filed 17 January 2011 Cronin J noted that paragraph 3 of the orders of 13 December 2000 were predicated upon the husband becoming eligible to receive any further benefit or payment and that there was no evidence before him that would suggest that that triggering event had occurred entitling the husband to those funds.
He further noted that paragraph 4 of the orders of 13 December 2000 required the Trustees of the superannuation funds and the husband’s employer to be served with an irrevocable authority (in a form prepared by the wife’s solicitors) and that there was no evidence before him that day that there had been any request by the wife for the husband to sign such authority.
On 1 March 2011, following the hearing before Cronin J, the wife’s solicitor forwarded to the husband an irrevocable authority to be signed by the husband directed to M Management Limited as the Trustee of the fund. By letter dated 18 April 2011 from the husband’s solicitors to the wife’s solicitors, the husband’s solicitors indicated that the husband was not prepared to sign the irrevocable authority and asserted that the wife was not entitled to receive the funds to which she said she was entitled pursuant to the order.
The wife’s solicitors, Barbour Arnold & Cousins, again wrote to the husband’s solicitors on 8 September 2011 requesting confirmation that the husband would execute the irrevocable authority within 14 days or that alternatively the wife would issue enforcement proceedings.
By letter dated 7 October 2011 the husband’s solicitors wrote to the Trustees of the fund, M Management Limited, requesting the immediate release of the funds held on the husband’s behalf to the husband. Those funds are now held by the Trustees of the fund until either they receive confirmation in writing from both parties as to the release of the funds or an order of this Court.
It is common ground that the husband is now eligible to receive the funds the subject of these proceedings. In her affidavit sworn 5 December 2011 the wife deposed that the withdrawal value of the fund was $168,678. Mr Indovino submitted that the value of the fund was $180,000 or thereabouts. The husband’s evidence that neither he nor his employer had made any further payments or contributions to the fund since the orders were made on the 3 December 2000 was not disputed.
Legal Principles
I was referred to a number of authorities by Ms Ben-Simon directing me to the principles to be applied and the question of the interpretation of an order of this Court. These principles were clearly set out in Langford & Coleman (1993) FLC 92-346 in which case Nygh J at 79-671, referring to those authorities, said as follows:
However, in my view, regrettably, there is clear authority for the proposition that at least in matrimonial causes once any financial agreement reached between the parties is embodied in consent orders, it is to these orders alone that the Court must look. The Court cannot take into account whatever agreement might or might not have been reached between the parties which led to the making of the consent orders, and the authority for that proposition is found in the opinion of the Privy Council on appeal from Hong Kong in de Lasala v de Lasala [1980] AC 546 at 560, where Lord Diplock said:-
“Financial arrangements that are agreed upon between the parties for the purpose of receiving the approval and being made the subject of a consent order by the court, once they have been made the subject of the court order no longer depend upon the agreement of the parties as the source from which their legal effect is derived. Their legal effect is derived from the court order.”
That principle was applied by the English Court of Appeal in the case of Thwaite v Thwaite, [1981] 3 WLR at 96 and I refer particularly to the judgment of Lord Justice Ormrod, as he then was, at page 101, where his Lordship said:-
“The effect of eliminating the contractual basis of these consent orders should simplify the problems. If their legal effect is derived from the court order, it must follow, we think, that they must be treated as orders of the court and dealt with, so far as possible, in the same way as non-consensual orders.”
These details, although they relate respectively to the law of Hong Kong and to the law of England, have been treated as authoritative in this country and were followed and applied most notably by the Full Court of this Court in Robertson and Wills (1982) FLC 91-215; 8 Fam LR 131, FLC at pp 77,158, 77,159 and p 77,161; Fam LR at pp 141 – 142 by Asche J and at p 144 by Fogarty J. Although in those cases, admittedly, the courts were concerned with the rights of appeal arising from consent orders and stressed the fact that a consent order can be appealed from, like any other order, in my view, the principle is wider than that. It follows that if an order made by consent must be treated like any other non-consensual court order it must be read and interpreted quite independently of what the parties subjectively might have intended thereby. It must be read as standing on its own feet, as it were.
Mr Indovino did not take issue with those principles.
I agree that I cannot, in order to interpret the order, look to the subjective intention of the parties when that order was made. However, if the order is ambiguous I can, when construing what is meant by that order, look to admissible evidence of the surrounding circumstances.
Interpretation of the Orders
The wife’s case is that the orders are clear and ought to therefore be enforced by way of an order directing the Trustee of the M Superannuation Fund to forthwith pay her all monies due and payable to the husband.
Counsel for the husband similarly submitted that the orders are clear but that the wife was seeking to change the orders. His case, which is clearly set out in his affidavit, is that it was intended that he would retain any superannuation benefits accumulated up until the date of the orders and that the wife was to receive any further benefits or payments made by the husband or his employer to the superannuation fund subsequent to the date of the orders. He said at paragraph 14 of his affidavit “that the agreement was that the Wife was only to receive further contributions to any superannuation fund made by me or on my behalf since the final order made in 2000”. It was his case that, as he had not made any further contributions to the fund after the orders were made, the wife had no entitlement to any of the monies in the fund. In support of the husband’s case, Ms Ben-Simon referred to paragraph 11 of the orders which referred to the balance to be received by the husband which she said made it clear that it was not intended that the wife would receive all of the husband’s entitlements.
It was further submitted that it was a question of how the words “eligible to receive” are interpreted and it was submitted on behalf of the husband that the only possible date it could refer to is the date of the orders.
Mr Indovino on behalf of the wife submitted that as at the date of the orders the husband was not eligible to receive any benefit or payment. It is common ground that the husband has only recently become eligible to receive his superannuation benefits. It follows logically, Mr Indovino submitted, that once he became so eligible for any further benefit or payment he was to do whatever was required to effect payment of all of his payments and entitlements to the wife.
On behalf of the wife it was further submitted that the terms of the original minute of proposed orders provided that the wife would be paid some part of the husband’s entitlements based upon the formula leaving a balance to be paid to the husband and that the failure to delete paragraph 11, which was no longer relevant or necessary following the amendments to paragraph 3 of the minute of orders, was an oversight.
Conclusion
In my view the meaning of paragraph 3 is clear. Whilst I was referred to what might be described as extrinsic material I do not need in this case to refer to that material in order to construe what is meant by the order. Although it might have been the husband’s understanding or intention that the wife would only be entitled to any further benefits or payments made by him or on his behalf subsequent to the orders, that is not what paragraph 3 of the orders provides and the order is to be interpreted independently of the subjective intention of the parties. Nor do I need to refer to paragraph 11 of the orders for the purposes of interpreting paragraph 3 of those orders. The fact that paragraph 11 refers to a balance to be paid to the husband does not, in my view, add to or alter what is the otherwise clear meaning and intent of these orders.
In my view the trigger, as it is referred to by Cronin J, is the husband’s eligibility to receive any further benefit or payments. Upon the husband becoming so eligible to receive any further benefit or payments pursuant to his membership of any superannuation fund to which either he or his employer or both have contributed all payments and entitlement due and payable to the husband are to be paid to the wife. Whilst the order refers to contributions made to superannuation it does not specify a time frame for those contributions which could have been made either before or after the date upon which the orders were made. The order does not refer to further payments made by the husband or his employer, it refers to his eligibility to receive further benefits or payments. It is common ground that the husband only recently became eligible to receive the superannuation benefits that are the subject of this dispute. In my view therefore it follows logically that as at the date the orders were made he was not entitled to any benefit or payments that may have been accumulated prior to or as at the date of the orders. In my view the relevant time for the purposes of giving effect to this order is the husband’s eligibility not, as submitted by Miss Ben-Simon, the date of the orders.
In those circumstances I propose to accede to the wife’s application and will make orders directing the husband to sign the necessary authority directing M Superannuation Fund and the D Superannuation Fund to effect payment to the wife of all payments and entitlements due and payable to the husband from the fund. I will also order that in the event that the husband fails to sign the necessary documents a Registrar of this Court be authorised to sign on the husband’s behalf.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 4 April 2012
Associate:
Date: 4 April 2012
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