Kuzmin & Russo

FEDERAL CIRCUIT COURT OF AUSTRALIA
Kuzmin & Russo [2020] FCCA 3291

File number: MLC 10140 of 2017

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 3 December 2020

Catchwords: FAMILY LAW – property – where final orders were previously made by consent– orders unable to be implemented – unilateral mistake – machinery provision – whether application to vary should be considered – vary or set aside – where a superannuation split is sought – pro forma orders – orders made

Legislation:
Evidence Act 1993 (Cth), s 140

Family Law Act 1975 (Cth), ss 79A, 90SF, 90SM, 90SN, 90XT and 106A

Federal Circuit Court of Australia Act 1999 (Cth), s 42

Federal Circuit Court Rules 2001 (Cth), r 103

Cases cited:
Bigg v Suzi (1998) FLC ¶92-799

Byrnes v Kendle (2011) 243 CLR 253

Harrison & Harrison (No 3) [2011] FamCAFC 241

In the Marriage of Langford and Coleman (1993) FLC ¶92-346

In the Marriage of Parker and Parker (1983) FLC ¶91-364

In the Marriage ofSimpson and Hamlin (1984) FLC ¶91-576

In the Marriage of Slapp and Slapp (1989) FLC ¶92-022

In the Marriage of West and Green (1993) FLC ¶92-395

Lowe v Harrington (1997) FLC ¶92-747

Parshen v Parshen (1996) FLC ¶92-270

Pendleton & Pendleton (2017) FLC ¶93-780

Stanford v Stanford [2012] HCA 52

Taylor v Johnson (1983) 151 CLR 422

Trustee for Estate of Lasic and Lasic (2009) FLC ¶93-402

Yunghanns v Yunghanns (1999) FLC ¶92-836

CCH Commentary: Australian Family Law & Practice Premium Commentary at [¶43-445]

LexisNexis Australia Family Law Commentary at [s 79] 79 Alteration of Property Interests

R Meagher, D Heydon and M Leeming, Meagher, Gummow and Lehanes Equity: Doctrines & Remedies (LexisNexis Butterworths, 4^th ed, 2002) 14-045).

J Heydon, M Leeming and P Turner, Meagher, Gummow and Lehanes Equity: Doctrines & Remedies (LexisNexis Butterworths, 5th ed, 2015) at 14-045 and 14-050).

Number of paragraphs: 193

Date of last submissions: 13 November 2020

Date of hearing: 21 and 22 October 2020

Place: Melbourne

The Applicant: Appeared In Person

Solicitor for the Respondent: Dr McConvill of James McConvill & Associates

MLC 10140 of 2017

BETWEEN:
MS KUZMIN
Applicant

AND:
MR RUSSO
Respondent

IT IS NOTED that publication of this judgment under the pseudonym Kuzmin & Russo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (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.
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION

This is the second wave of litigation for these parties. The Applicant Mother, Ms Kuzmin (‘the Mother’) is a professional and aged 35 years. The Respondent Father, Mr Russo (‘the Father’), is self-employed and aged 39 years. The parties never married but cohabited in a de facto relationship from 2011 or late 2011 until August 2017. The parties had two children; R (born 2013) and B (born 2016) now aged seven and four years. Those children were four and one at the time of separation.
At the time the parties’ commenced cohabitation the Father had a daughter (who is now aged 16) who was about seven at the time, and was about 13 at the time of separation. At the time the parties commenced cohabitation the Mother had two children from previous relationships; J (born 2006) and T (born 2008) who were aged 5 and 3 at the time of cohabitation and 11 and 9 at the time of separation. Final parenting orders were made by consent on 28 March 2019. The children now live with the Mother and spend each alternate weekend from after school Friday until before school Monday with the Father as well as special days and at times during the school holidays.
PROCEDURAL HISTORY
The proceedings commenced when the Mother filed an initiating application on 2 October 2017. The first phase of the proceedings ended on 3 December 2019 when final orders as to property were made by consent (‘the December 2019 consent orders’) by another Judge of this Court. In the time between the start and the end of the first part of the court case the parties had between them filed approximately 51 different documents.
The proceedings came before me on 9 October 2020 when I called over a list of cases that were awaiting final hearing. At the call over I was told the hearing of the second part of the proceedings was urgent because the Mother had obtained approval of finance to refinance the mortgage on the property that would expire on 27 October 2020 if not utilised and that it could not be utilised because the parties could not agree what the December 2019 consent orders meant and how those orders should be implemented.
With the agreement of the parties the matter was listed for hearing before me for a one day hearing a few days later on Wednesday, 21 October 2020 and I requested the parties to give a caveator Mr A of A Lawyers (‘Mr A’), a former solicitor of the Father’s, notice of the hearing and notice of the December 2019 consent Orders.
All aspects of the hearing before me were by video conference over the facility of Microsoft Teams.
By the time the December 2019 consent orders were made the parties dispute revolved around how to deal with their equity in the property known as C Road, Town D in the State of Victoria (‘the C Road Property’). During the hearing before me at my request the Mother emailed to my Associate a title search and copy of a caveat lodged, which I have marked M1 as an exhibit in the proceedings. The title search shows that the Mother and the Father became the registered proprietors of the C Road Property on 18 September 2013 with borrowings secured by mortgage to the National Australia Bank.
By the time of separation the parties had owned the C Road Property for four years and post separation, until the hearing before me, for a further three years.
DOCUMENTS RELIED UPON
The Father was represented by his solicitor and the Mother represented herself. The Father relied upon 12 documents filed in the second wave of the proceedings (filed between 20 March 2020 and 21 October 2020) and further written submissions. The list of the documents as ultimately relied on are attached to these reasons and marked as “Schedule A Father’s Documents.”
The Father’s affidavits included an affidavit from his solicitor who appeared before me as counsel. No point was taken as to the sometimes unsatisfactory circumstance of the solicitor being both counsel and witness.
At the start of the hearing I raised with the solicitor for the Father that the exhibit R-6 to the Father’s affidavit filed 9 October 2020, an email dated 20 May 2020 from counsel who had appeared for the Father on 3 December 2019 and was briefed by the Father’s solicitor (who now appeared as counsel at the hearing before me), appeared on its face to be an out-of-court assertion of previous counsel’s observations and opinion as to the effect of the orders of 3 December 2019 and the Mother’s position. I raised that this document was hearsay and not admissible and the solicitor for the Father agreed. I have not had any regard to that document R-6.
The Mother relied upon the documents in the list attached to these reasons and marked “Schedule B - Mother’s Documents”. In addition, as I advised the parties, I had reference to the transcripts that were on the court file of the proceedings, all before a different Judge, on 11 September 2019, 3 December 2019 and 1 July 2020.
Consequent upon notice being given to the caveator (the Father’s former solicitor Mr A) he emailed to the parties and my Associate a document headed “Submission” and I have marked that document as an exhibit A-1.
After the hearing concluded I found that the information in the documents the parties relied upon was not sufficient for me take into account the matters in sections 90SM, 90SF and 90SN of the Family Law Act 1975 (Cth) (‘the Act’). A further mention of the matter was arranged and at that mention I obtained from the parties their consent for me to refer to their 2019 trial affidavits. The parties did not wish to further cross examine the other concerning that further evidence notwithstanding much of the evidence was controversial. Some days after that mention the Father sought and obtained leave to file further submissions as to the superannuation orders he sought. Those submissions were filed on 13 November 2020.
I have had regard to all of those documents and to the evidence and submissions of the parties. It is inconvenient and unnecessary to recite or refer to all of that evidence. The proceedings are pursuant to Part VIIIAB the Act and I have had regard to all of those provisions.
THE CONUNDRUM OF THE PREVIOUS ORDERS
The conundrum that the parties found themselves in is readily apparent when the terms of the orders of the December 2019 consent orders are referred to. The lesson to litigants in person and practitioners of the utility of the courts pro forma property orders (that are usually available on the bar table), particularly at the end of a hard days stressful and difficult negotiating, will also be readily apparent. The proceedings are a lesson in the iceberg nature of contested proceedings for property division. I say iceberg because in these proceedings the bulk of the things that could go wrong, and did go wrong, were below the surface of the parties’ comprehension at the time of the December 2019 consent orders.
The December 2019 consent orders were as follows:
THE COURT ORDERS BY CONSENT, ON A FINAL BASIS, THAT:
1. That the Applicant be at liberty to re-finance C Road, Town D ("the property") on or before 3 January 2020.
2. That the Applicant notify the Respondent's solicitors immediately in the event she has been approved for re-financing of the property and provide evidence of same approval.
3. In default of the Applicant re-financing the property on or before 3rd January 2020, it be immediately placed on the market for sale by public auction of a valuation and on such terms and conditions as may be agreed and in default of agreement, as may be determined by the President of the REIV or his or her nominee including the reserve price. The parties to agree on an agent to conduct the sale and in default as may be recommended by the President of the REIV or his or her nominee.
4.That after deduction of the necessary costs of sale, the net proceeds of sale, less any outstanding mortgage or charge be divided between the parties in the proportions of 70 percent to the Applicant Wife and 30 percent to the Respondent Husband.
5. That the Respondent's solicitors and the Applicant have the conduct of the sale and agree upon a conveyancer and the settlement date before 10th January 2020.
6. That each party ensure the removal of their respective caveats in their names secured against the property on or before settlement of the sale or re-financing of the property.
7. In the event that the property is sold, there be an equalisation of superannuation between the Husband and Wife.
It was common ground before me, from the callover, that it was implicit in order one that contemporaneously with the “refinance” that the Father would transfer his interest in the C Road Property to the Mother. It should not have been left to implication: it should have been expressly provided as is the usual course.
The second wave of the proceedings had commenced on 20 March 2020 when the Father filed a further affidavit of his solicitor in support of an Application in the Case whereby he sought to enforce the orders as he said he understood them. That Application in a Case came before another Judge (and a different Judge to the Judge who made the December 2019 consent orders) on 13 May 2020. The December 2019 consent orders were then varied by extending the time available to the Mother to “refinance” the debt to the National Australia Bank secured over the C Road Property and ordering the Father to provide a transfer of land document of the C Road Property.
The orders of 13 May 2020 were as follows:
THE COURT ORDERS THAT:
1. The matter be adjourned to 26 June 2020 at 10am for interim hearing.
2. The husband provide to the wife a duly completed transfer of C RoadC Road, Town D, ("the property") by 5pm on 20 May 2020.
THE COURT ORDERS BY CONSENT THAT:
3. The wife provide to the husband a copy of any approval in principle from her bank within 48 hours of receipt, which approval is expected to be provided to the wife by 15 May 2020.
THE COURT ORDERS THAT:
4. The wife refinance the property and arrange settlement for the property on or before 25 June 2020.
5. The wife pay all mortgage and rates instalments pending settlement as they fall due.
6. Each party have liberty to apply.
The Father did not provide the Transfer of Land document as ordered until the completion of the next application in a case on 1 July 2020. Following the 13 May 2020 orders each party issued further Applications in a Case seeking to vary the 2019 December consent orders. Those further applications came before the Judge who made the December 2019 consent orders on 1 July 2020. All of those further applications were struck out as incompetent, but with leave to both parties to file applications pursuant to section 79A(1) of the Act. The “leave” was really a suggestion, generously made, that further application pursuant to section 79A of the Act might assist the parties resolve their conundrum.
As the parties had never married I took the reference in the transcript to section 79A of the Act as being intended to be a reference to section 90SN. Counsel who appeared for the Father that day had appeared on the day the December 2019 consent orders were made.
On 29 September 2020 as part of the call over, my Associate sent out a pro forma questionnaire that was requested to be completed by Friday, 2 October 2020 (the last working day before the call over listed to commence in the following week) and the parties were advised that their matter would be called over on Friday, 9 October 2020.
Whether daunted or undaunted by the lack of success of the previous application and whether spurred on by the notice of the call over or whether it was simply finally got around to, on 6 October 2020, the Mother filed a further application in a case and sought the following orders.
1. That under section 79(1)(a) of the Family Law Act that the final orders made 3^rd December 2019 be amended to include:
8.Pursuant to Section 106A(1) of the Family Law Act 1975, a Registrar of the Federal Circuit Court of Australia at Melbourne be forthwith appointed to execute the signing of the transfer of land documents and the Discharge of Mortgage documents in relation to the real property at C Road Town D in the name of the Husband and the court registrar do all acts and things necessary to give validity to the transfer and the Transfer Documents for the purpose of transferring all the husbands interest to the applicant wife.
2. That under section 79(1)(a) of the Family Law Act that the final orders made 3^rd December 2019 be amended to include:
6(a).Failure by the husband to remove the caveat lodged by G. A Black & Co. on the real property at C Road Town D Vic, in compliance with paragraph 6 of the final orders made on 3 December 2019, there be a transfer from the husbands Superannuation F account number 27557691 to the applicant wifes nominated Superanuation fund for the sum of $42,571.00 within 7 days of the date of this order and further orders that the wife pay A Lawyers $22,028.98 to remove the caveat held over the real property known as C Road Town D VIC.
3.That under section 79(1)(a) of the Family Law Act that the final order made 3^rd December 2019 be amended to include: 1(a) and 3(a) There be an extension of time granted for settlement of the real property known as C Road Town D Vic to the 30^th November 2020.
4.That under section 79(1)(a) of the Family Law Act that the final orders made 3^rd December 2019 be amended to include:
4(a).That should the applicant wife herein fail to refinance the property and it be placed up for sale, after the deductions of the necessary costs of sale including the payment to clear any caveats, mortgages, rates and any other necessary costs, that the applicant wife retain 100% of the proceeds of the sale of the real property known as C Roads, Town D, Vic.
(emphasis added)
The Father filed a response on 9 October 2020, the day of the call over, and without reciting the source of power sought orders as follows:
1.        That Order 1 of the Orders dated 3rd December 2019 be varied as follows:
1.That the Applicant be at liberty to refinance C Road, Town D (“the property”), with the agreed value of $500,000.00, on or before 30th November 2020.
2.That the Orders dated 3rd December 2019 be varied to include further clause 1a as follows:
1a)That the Applicant refinance an additional amount of $22,028.98, being the A Lawyers caveat held over the property and remove caveat on or before settlement. With the amount of $22,028.98 to be deemed as a partial property settlement for the Respondent.
3.That the Orders dated 3rd December 2019 be varied to include a further clause 2a as follows:
2a)That in the event that the Applicant is successful in obtaining refinance of the property, the parties do all such things and sign all necessary documents to transfer all of the Respondent’s right, title and interest in the property to the Applicant.
4.That the Orders dated 3rd December 2019 be varied to include a further clause 2b as follows:-
2b)That contemporaneously with compliance with Order 2a above, the Applicant pay to the Respondent or his nominee his 30% share of equity in the property, being the sum of .
5.        That Order 3 of the Orders dated 3rd December 2019 be varied as follows:
“In default of the Applicant refinancing the property on or before 30th November 2020, it be immediately placed on the market for sale by public auction of a valuation and on such terms and conditions as may be agreed and in default of agreement, as may be determined by the President of the REIV or his or her nominee including the reserve price. The parties to agree on an agent to conduct the sale and in default as may be recommended by the President of the REIV or his or her nominee.”
6.        That Order 5 of the Orders dated 3rd December 2019 be varied as follows:
“That the Respondent’s solicitors and the Applicant have the conduct of the sale and agree upon a conveyancer and the settlement date before 14th December 2020.”
7.        That Order 6 of the Orders dated 3rd December 2019 be varied as follows:
“That each party ensure the removal of their respective caveats in their names secured against the property on or before settlement of the sale of the property.”
8.That there be an equalisation of superannuation between the Husband and Wife.
(emphasis added)
At the 9 October 2020 call over I fixed the matter for hearing on 21 October 2020. At the call over I raised with the Father’s solicitor that it appeared implicit in the December 2019 consent orders that there should be a transfer of the Father’s interest in the C Road Property to the Mother upon her refinancing the mortgage debt. The Father’s solicitor agreed. I requested the Mother give notice to Mr A of the hearing and that an issue in the proceedings is whether he had a caveatable interest in regard to the Applicant's interest in the C Road Property in light of the Orders including the implied obligation of the Father to transfer all of this right, title and interest in the property to the Mother upon her being able to refinance the mortgage.

On 19 October 2020 two days before the final hearing, the Father filed a further Application in a Case in substantially the same terms save that the orders sought were now sought to be pursuant to section 79A(1)(b) of the Act. On 21 October 2020 I pointed out to the parties that it appeared to me that, in substance, they each sought to utilise section 90SN of the Act, being the equivalent provision for parties whose de facto relationship had ended, rather than section 79A, being a section that would apply if the parties had been married. The parties agreed with my suggestion that I treat their references to section 79A as a reference to section 90SN and I have done so.
I was minded to take a more informal approach notwithstanding the seriousness of the matter guided by section 42 of the Federal Circuit Court of Australia Act 1999 (Cth) that provides:
42. Federal Circuit Court of Australia to operate informally
In proceedings before it, the Federal Circuit Court of Australia must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.
The provisions of the Federal Circuit Court Rules 2001 (Cth) at rule 1.03, and the troubled procedural history of the proceedings to date reinforced in my mind that I should proceed less, rather than more, formally and without undue delay, expense and technicality.
THE HEARING
At the commencement of the hearing on 21 October 2020 I sought to clarify just exactly what I was hearing. The parties confirmed that they each sought to retain the underlying substance of the December 2019 consent orders but to vary those orders.
It was the Mother’s case that the underlying concept contained within the December 2019 consent orders remain, but that those orders should be varied to provide for an extension of the time to refinance the mortgage debt and that the Father should, prior to that refinance and to enable it to occur, pay the debt of $22,364 to his former solicitor, the caveator, but that if he does not the Mother should pay that but with a corresponding superannuation payment split order to be made from the Father’s superannuation to the Mother.
It was also, in substance, part of her case that the Father’s failure to cooperate with the preparation of the transfer of land document had caused or at least contributed to her inability to refinance in the 30 days originally provided for in the December 2019 consent orders and the date extended in the May 2020 hearing.
It was part of her case that the refinance had now been obtained with the assistance of her parents and that this approval would dissipate if not utilised on or before 27 October 2020 and hence proceedings needed to be determined urgently.
It was part of her case that she had not agreed in the making of the December 2019 consent orders to paying the Father 30% of the equity in the property upon the refinance and that no such provision had been “overlooked” and that by the orders she was not required to make such payment to the Father. She said this was evident from the provision of order number seven which provided for “an equalisation of superannuation” only “in the event that the property is sold”.
The Father’s case was that the December 2019 consent orders had been made with the provision or order that upon the refinance the Mother would pay him a sum equivalent to 30% of the equity in the property being overlooked. His case was that the underlying concept, as he said he believed it to be, contained within the December 2019 consent orders should remain.
In substance he pressed that those orders should now be varied to include the previously said to be overlooked payment to him and with other necessary or consequent changes to give effect to the underlying scheme of the orders as he said he then intended those orders to be.
The Father relied upon section 90SN(1)(b), the “impractical” section. It was also part of the Father’s case that the Mother had deliberately stalled the court proceedings as she was unable to provide proof that she had obtained a refinance proposal and that she was “deliberately trying to mislead the court in regard to what has previously, on numerous occasions, been ordered or consented to that being, that I received 30% of the value of the property from which I’m to pay out my caveat” (see: paragraph [18] of the Father’s affidavit filed 16 October 2020).
Hence it was clear enough at the commencement of the hearing that neither party sought that I set aside the December 2019 consent orders and start again with the complete section 90SM or Part VIIIAB property division enquiry. I clarified with the parties whether either sought to set aside the orders and start the process again. Each told me they did not. Each sought to retain what each saw as the underlying scheme of the orders and then vary the orders to overcome the short falls, as each saw it, of those orders.
It was part of the Mother’s case that the Father, at all material times, had the capacity to pay his previously outstanding legal bill as she said was provided in paragraph 6 of the orders but that he had simply refused to comply with the orders and he should be ordered to do so again. But if the fall back came to pass, on top of the quid pro quo of the $22,364 superannuation payment split the Mother sought an additional $20,364 of the superannuation payment split which she calculated to be the additional interest she would pay at 5% per annum upon $22,364.
From my perspective a further complication or twist to the proceeding was that Mr A had lodged a caveat over the Father’s interest in the C Road Property and I feared that he had not been given notice of the hearing on 3 December 2019 or of the parties intention to make the orders actually sought, or of the parties intention to make the orders that each now sought.
It was common ground, that although the orders did not actually say so, it was to be implied within the orders, that upon the Mother refinancing the mortgage debt secured over the C Road Property, that the Father was to transfer all his right title and interest in that property to the Mother. Upon the making of that order and/or upon the execution of the necessary transfer to give effect to that order, it appeared to me that the interest of Mr A, as chargee over the Father’s interest in the property may have evaporated upon the obligation to transfer or the transfer, but subject to whatever equitable rights he may retain particularly in circumstances of the parties having notice of his claim and he not having any notice of the hearing or orders as made.
In the context of the allegation the Father could have paid his lawyer and to demonstrate that he could not, the Father filed a further updated financial statement and affidavit on the day of the hearing commenced before me on 21 October 2020.
In the Father’s case, in substance, he agreed with the concept that the time frame for the refinance be rejigged but with the additional, he said previously overlooked, provision that upon the refinance he be paid 30% of the equity and that whether upon the refinance or upon the default sale there be an “equalisation” of superannuation. I note that the orders made on 3 December 2019 at paragraph 7 only provided for a superannuation payment split, “in the event the property is sold.”
Although tempted to reject both parties’ request to retain the underlying scheme of the December 2019 consent orders and to discharge those orders in their entirety and start again with an orthodox section 90SM property division case, on 21 October 2020 or such later date as necessary to accommodate such a hearing, I acquiesced in the parties’ request to proceed in the manner they both sought. I regarded the Federal Circuit Court Act 1999 (Cth) and Federal Circuit Court Rules 2001 (Cth) commands to proceed without undue formality as also informing me about whether I should agree with proceeding as the parties sought and there was also the apparent need for an urgent determination.
Each of the parties had complained in the first wave of the proceedings about inadequate disclosure of financial information by the other and the Mother did not accept that the Father had been full and frank in these proceedings about his income.
Neither party objected to any late filing on the part of the other and I specifically raised with the Mother whether she had anything to say about the Father filing material on 19 October 2020 and on the day of the hearing. Before me her attitude was clear: she simply wanted to get on with the hearing.
I was told that there was no discussion on 13 May 2020 as to the power of the Court to vary the final orders of 3 December 2020. Those orders were made on the return of the Father’s application to enforce the default position within the orders of a sale of the property upon the Mother not refinancing that property. It appears to have been the Mother’s case on 13 May 2020 that the Father had either frustrated her attempt to comply with the orders or at least his failure to cooperate by providing the transfer of land document in a timely manner had contributed to the Mother being unable to obtain finance by the due date/s. Neither party raised the issue of whether those orders were properly made. If the date for the refinance was not a substantive provision, but merely a consequential or machinery provision, it could be varied upon application without recourse to section 79A or 90SN of the Act as the case may be. An order once made will be presumed to have been regularly made. Further there would be a discretion as to whether to enforce the orders if it would be contrary to the interests of justice to do so. There was no appeal from the 13 May 2020 orders.
THE APPLICABLE LAW
It is settled law that, without any qualification or other provision, the time for performance of an obligation that vests parties’ rights upon the performance or non-performance of an obligation is a substantive provision and not subject to variation as a mere consequent or “machinery” provision (see: the discussion in CCH Commentary: Australian Family Law & Practice Premium Commentary at [¶43-445] and LexisNexis Australia Family Law Commentary at [s 79] 79 Alteration of Property Interests and In the Marriage of Slapp (1989) FLC ¶92-022).
Section 90SN of the Act provides as follows:
90SN Varying and setting aside orders altering property interests
(1)If, on application by a person affected by an order made by a court under section 90SM in property settlement proceedings, the court is satisfied that:
(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
(b)in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c)a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(d)in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the de facto relationship, the child or, where the applicant has caring responsibility for the child (as defined in subsection (3)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
(e)a proceeds of crime order has been made covering property of the parties to the de facto relationship or either of them, or a proceeds of crime order has been made against a party to the de facto relationship;
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 90SM in substitution for the order so set aside.
Note:   For child of a de facto relationship, see section 90RB.
(2)A court may, on application by a person affected by an order made by a court under section 90SM in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 90SM in substitution for the order so set aside.
(3)For the purposes of paragraph (1)(d), a person has caring responsibility for a child if:
(a)       the person is a parent of the child with whom the child lives; or
(b)       a parenting order provides that:
(i)        the child is to live with the person; or
(ii)       the person has parental responsibility for the child.
(4)An order varied or made under subsection (1) or (2) may, after the death of a party to the de facto relationship in relation to which the order was so varied or made, be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(5)If, before proceedings under this section in relation to an order made under section 90SM are completed, a party to the de facto relationship dies:
(a)the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings; and
(b)       if the court is of the opinion:
(i)that it would have exercised its powers under subsection (1) or (2) in relation to the order if the deceased party had not died; and
(ii)that it is still appropriate to exercise its powers under subsection (1) or (2) in relation to the order;
the court may vary the order, set the order aside, or set the order aside and make another order under section 90SM in substitution for the order so set aside; and
(c)an order varied or made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(6)      In the exercise of its powers under subsection (1), (2) or (5), a court must have regard to the interests of, and must make any order proper for the protection of, a bona fide purchaser or other person interested.
(7) For the purposes of this section, a creditor of a party to the proceedings in which the order under section 90SM was made is taken to be a person whose interests are affected by the order if the creditor may not be able to recover his or her debt because the order has been made.
(8)      For the purposes of this section, if:
(a)an order is made by a court under section 90SM in proceedings with respect to the property of the parties to a de facto relationship or either of them; and
(b)either of the following subparagraphs apply to a party to the de facto relationship:
(i)        when the order was made, the party was a bankrupt;
(ii)       after the order was made, the party became a bankrupt;
the bankruptcy trustee is taken to be a person whose interests are affected by the order.
(9)      For the purposes of this section, if:
(a)       a party to a de facto relationship is a bankrupt; and
(b) an order is made by a court under section 90SM in proceedings with respect to the vested bankruptcy property in relation to the bankrupt party;
the bankruptcy trustee is taken to be a person whose interests are affected by the order.
(10)     For the purposes of this section, if:
(a)an order is made by a court under section 90SM in proceedings with respect to the property of the parties to a de facto relationship or either of them; and
(b)either of the following subparagraphs apply to a party to the de facto relationship:
(i)when the order was made, the party was a debtor subject to a personal insolvency agreement;
(ii)after the order was made, the party became a debtor subject to a personal insolvency agreement;
the trustee of the agreement is taken to be a person whose interests are affected by the order.
There is a profound difference between what is required for the exercise of power pursuant to sections 90SN(1)(a) and 90SN(1)(b). Section 90SN(1)(a) requires there to have been a miscarriage of justice at the time of the orders. See Bigg v Suzi (1998) FLC ¶92-799 (Bigg v Suzi) at [6.39]:
“In Public Trustee v Gilbert (supra) the Full Court also decided that as a miscarriage of justice for the purposes of s 79A(1)(a) must arise out of the judicial process, the integrity of that process cannot be put in question by something which happens after that process has been completed. Thus it held that a miscarriage of justice can only occur by reason of a fact or event which occurs before or at the time of the making of the relevant order which is sought to be set aside.”
Section 90SN(1)(b) is not concerned with a miscarriage of justice at the time of the orders but rather whether circumstances have arisen since the orders had been made that make it impractical for the orders to be carried out. The Father’s application at the commencement of the case rested upon section 90SN(1)(b), the “circumstances that have arisen since the order was made it is impractical” provision.
WHO “OVERLOOKED” THE PAYMENT?
At the heart of the Father’s case was the factual allegation that the payment to him of 30% of the equity provision (said to be approximately $51,000) had been overlooked and that the Mother was attempting to mislead the court in her disagreement with that proposition. I pressed the Father’s solicitor as to who had overlooked the 30% equity payment to him in the following terms:
HIS HONOUR: Overlooked. Okay. Thank you. Overlooked. Now (addressing the Father’s solicitor), my question to you is, is your case, is overlooked by whom?
FATHER’S SOLICITOR: Overlooked by counsel during the drafting of the minute.
Taking the evidence of the Father and the submissions and statement of position of the Father’s solicitor it is clear enough that in fact two mistakes or errors are alleged relating to the “overlooked” provision.
The first is as was articulated by the Father’s solicitor: that the Father’s counsel “overlooked” the payment of the 30% equity to the Father during the drafting of the minute of the consent orders. The second was that he was to pay the $22,364 to Mr A from the ‘overlooked’ 30% equity payment. I infer this from paragraphs [5]-[11] and [22] of the Father’s affidavit filed 9 October 2020 being:
[5] I was of the understanding that the December Orders were to include a split of 30% to me and 70% split to the applicant of the equity in the property located at C Road Town D (the property), regardless of whether the property was refinanced by the applicant or sold.
[6]      The applicant I previously agreed that the property’s value is $500,000.
[7]The current mortgage over the property is approximately $328,000 giving a net value of approximately $172,000.
[8]Based on the above figures my 30% share of the equity in the property is approximately $51,600.
[9]I was of the understanding that the applicant would refinance the property for a minimum of $425,000 which was to include the following amounts when refinancing:
(a)       Mortgage over property of approximately $328,000.
(b)       Applicants outstanding caveats totalling approximately $40,000.
(c)       My equity of $51,600; and
(d)       Any associated fees with refinancing.
[10]After receiving my 30% share of the equity, I would then remove the caveat held over the property by Mr A of approximately $22,000 and retain the balance of approximately $30,000.
[11]I engaged a barrister for the hearing on 3 December 2019… (that barrister and my solicitor) and I negotiated with the Applicant on the day and I agreed to receive $30,000 as a cash payment from the Applicant and have my caveat discharged.
…
[22]In response to paragraph 2 of the Applicant’s Affidavit, the Transfer of Land cannot be completed until all the caveats are removed from the property. I do not have the money to pay the caveat out and as outlined above I expected the caveat would be paid out and deemed as a partial property settlement for me.

This was consistent with the oral evidence the Father gave about what his “understanding of how the orders worked if there was a refinancing of the property”.
The Father also gave evidence of his understanding of what was to occur with the superannuation and he said:
“For the super, that- this is where I’m a bit confused, because I only earned $27,217.04 and Ms Kuzmin earned $24,840.03. So I don’t know we were getting this $51,000 that I owe her, because I don’t. So in between us there was only $2377.01, so I don’t know why I owe her $50,000 when I never earned that”.
(see: line 35 of page 59 of the Transcript dated 21 October 2020)
The Father was asked what his understanding of what date his interest in superannuation would be taken from? The Father responded with:
“Well there is none there is not really anything in it. There is only- the difference between Ms Kuzmin and I is $2377.01, so she only gets a percentage of that. We pretty much earned the same amount of super as each other in the time we were together.”
(see: line 40 of page 59 of the Transcript dated 21 October 2020)
The Mother’s affidavits did not deal with what the “equalisation of superannuation” would mean in dollar terms. At the call over on 9 October 2020, I raised this with the parties, and at that time it appeared to be common ground that the “equalisation of superannuation” would come to an amount of approximately $50,000.
After the above passage of evidence, which was contrary to what I had understood to be the parties’ common position, I sought clarification. The following passage occurred.
HIS HONOUR: Sorry, could I just clarify there, Dr McConville? Do you mean, Mr Russo, that if you only look at the period-if you only look at the super that was accrued during the time that you were together, that the adjustment would be something in the order of $2,000 to $3,000?
The Father answered “yes”.
(see: line 1 of page 60 of the Transcript dated 21 October 2020)
The Father’s solicitor did not advise me as to why there was a change of position.
This is a property case and the rules of evidence apply. I told the Father’s solicitor that I would hear the evidence and rule later as to whether or not that was admissible and there was no objection to that course.
I was not addressed on the basis of the admissibility or the relevance of the evidence. It is settled law that parties’ subjective interpretation or intention is not relevant to the interpretation of an order. But a parties intention would be admissible in dealing with the issue of mistake (see: In the Marriage of Langford and Coleman (1993) FLC ¶92-346 and Yunghanns v Yunghanns (1999) FLC ¶92-836).
CREDIT AND RELIABILITY OF THE PARTIES EVIDENCE
Matters to be proved are in accordance with section 140 of the Evidence Act 1993 (Cth) that is to be proved on the balance of probabilities. A matter as serious as a party “deliberately trying to mislead the court” need be proved on the balance of probabilities but the evidence required would need to be more cogent in that circumstance.
I note that the Mother did not wish to cross examine the Father or any of his witnesses although she had the opportunity to do so. I note that the Father's solicitor only cross examined the Mother about her assertion that her parents are the applicants for finance to re-finance the existing mortgage and are the intended registered proprietors and are to hold the C Road Property on trust for the Mother.
The Father's solicitor contended that for the Court to accept that assertion the parents should have been called as witnesses in the Mother's case and that the December 2019 consent orders provided for the Mother not the Mother and/or her parents to refinance. Notwithstanding the minimal cross examination the parties each expected me to resolve factual disputes in her or his favour.
In this case I regarded everything as in issue unless I could ascertain that it was agreed or not seriously disputed. However the Court was simply not in a position to resolve many of the factual disputes between the parties but ended up being in a position to make sufficient factual findings to determine the legal dispute between the parties. To be in that position it was necessary for me to make inquiries of the parties as the hearing went along.
Apart from her affidavit I permitted the Mother to tell me, as evidence in chief, what further matters she wanted to. I extended the same liberty to the Father. Both gave further evidence on oath. Although only challenged in cross examination on the issue of her parents rather than her alone, being the transferor/refinancer/s, I found the Mother to be frank and reliable in what she told me and telling the truth as she saw it.
Matters that contended against the Father's position that the provision as to his 30% equity payment had been overlooked and caused me to consider his credit included:
(a)the absence of any reference to an actual figure of that payment being referred to at the time of making the orders or in the December 2019 consent orders themselves (that figure was not articulated to the Mother by the Father until after the 13 May 2020 hearing and possibly not until the Father's material filed in October 2020 and was consistent with recent invention); and
(b)the Father’s position as to what a “equalisation of superannuation” changed from time to time.
In discussion with me when, towards the end of the case, I asked the Mother about whether any value was agreed on the day of the December 2019 consent orders as to the C Road Property the Mother readily told me that the value of $500,000 had been agreed that day for the purpose of negotiation. The Father by his solicitor agreed with her evidence on that point. I find that at the time of that concession the Mother was alert to the circumstance that the absence of an agreed figure made it more difficult for the Father to assert his case, as the basis of the calculation of the 30% equity figure was more difficult or impossible without that agreement.
The Father's solicitor in closing address put to me that the Mother, deliberately or inadvertently had previously given false evidence about the fact that she was obtaining finance (not her parents). This was, he said, a further basis for the orders being varied, but varied according to section 90SN(1)(a), a miscarriage of justice by the giving of false evidence in addition to the other aspects of his case that relied upon section 90SN(1)(b), the “impractical” provision.
For the reasons set out in the section of these reasons dealing with unilateral mistake as a potential miscarriage of justice I do not accept that the Mother gave “false” evidence, inadvertently or deliberately, about this matter.
I could not see any basis on the evidence before me to find that the Mother was not a creditable and reliable witness. I found her demeanour and the manner in which she addressed questions in cross examination and from me to be frank and open and not to be merely open about those matters she perceived as helpful to her case.
EQUALISATION OF SUPERANNUATION
What was intended to be effected by “equalisation of superannuation” was, by the end of the hearing, also disputed. Such an expression would not ordinarily be included in orders properly made. It is not an order that could be implemented if made. Such an expression, in my experience, is at least not infrequently included in late evening “Heads of Agreement” where both parties are represented and where such terms are but a point on the way to detailed minutes of consent orders. The term, only anecdotally and in my experience, maybe interpreted amongst practitioners in those circumstances as meaning that there be drafted and served upon the relevant superannuation fund a detailed superannuation payment splitting order pursuant to Part VIIIB of the Act with be a section 90XT(1)(a), “the amount” or (b), “specified percentage.” The provision has the effect of leaving each of the parties with equal total account balances of superannuation at the time of the mediation or hearing or orders. The fact that what this term meant in the December 2019 consent orders is now disagreed is another of the things that can go wrong and did go wrong when drafting shortcuts are employed in orders.
The Father in his Application in a Case filed 19 October 2020 sought an “equalisation of superannuation” without the opening words of limitation as provided in the December 2020 consent orders. The earlier discussion of that gave me the impression that the "equalisation" then sought was using the account the balances at the time of hearing. The Father's viva voce evidence in chief put the position quite differently. He sought, in effect, that merely the increase in superannuation account balances during the cohabitation of the parties be equalised, which to his mind was a very small adjustment. This was consistent with an opportunistic reinterpretation of his case.
A few days after the hearing and before delivering reasons, while I was still considering the matter, I bought the matter back on for mention. A number of matters required the parties to have the opportunity to address me. I asked whether there was any objection to my reading each parties affidavits of evidence in chief filed for the 3 December 2019 hearing and, if I were to read those affidavits, whether either party sought to cross examine the other party about that evidence. There was no objection and neither wished to cross examine the other. I also wished to clarify what material each party relied upon and knew that the other relied upon. Prior to the mention my Associate emailed the parties a list of the documents I understood them to rely on. Each confirmed the list of documents relied upon (largely Schedule A and B of these reasons) was correct.
At this mention I raised the issue with the Father's solicitor of the disparity between his 19 October 2020 Application in a Case and opening position as to “equalisation of superannuation,” as I understood it, and in his client’s oral evidence. I was told that the Father's case was that there should be an equalisation of superannuation as at separation, which I understood is an order that would equalise superannuation balances as at the time of separation. This was a third position on “equalisation of superannuation.”
I found the Father's solicitor to be candid and frank with me at all times and he did not obfuscate what were potentially difficult aspects of his case and appeared to me to take seriously his duty to the Court. In the end I am unable to find any reason that the Father, like the Mother, has not been a credible witness as to factual matters in oral evidence and in affidavit. That is he has truthfully set out matters as he sees them.
The determination of what were the central factual disputes were made more difficult by the parties’ use of drafting shortcuts and the absence of the use of the conventional and time tested drafting aid of the Courts pro forma form of orders. The Hatter in Lewis Carrol's Alice in Wonderland was entirely correct in his argument with Alice:
‘Then you should say what you mean’ the March Hare went on. ‘I do,’ Alice hastily replied, ‘at least- at least I mean what I say- that’s the same thing, you know.’
‘Not the same thing a bit’ said the Hatter.
THE FATHER’S APPLICATION
It is convenient to deal with the Father's Application first. The Father relies upon two sets of factual allegations. The first is that it was agreed that upon the refinance and the (common ground) (implied) transfer of the Father's interest in the C Road Property, the Father would be paid a sum equivalent to 30% of the parties equity in the property (by reference to only the value of the property and the balance of the mortgage debt) and that this provision was intended by him to be in the orders but was “overlooked” by his counsel when drafting the orders that were then made without such provision. Part of this set of allegations was the assertion that the provision requiring him to discharge "his" caveat was understood by him to mean that the amount required to be paid to his former solicitor would come from the payment of “his” 30% of the equity calculated as described above. I describe this set of allegations as the “overlooked allegations”. The overlooked allegations, if proved, would mean that there was a mistake made at the time the orders were made.
The second set of allegations was that it was agreed to be, and intended to be, in the orders that the "refinance" was intended to be solely undertaken by the Mother and not by the Mother with the assistance of her parents or in the name of the parents holding the property on trust for the Mother and that the Mother had given “false evidence” about that.
The Father's case as articulated in affidavit, Application in a Case and submissions of his solicitor acting as counsel, was that the first set of allegations should be regarded as proved and that those circumstances satisfied the provisions of section 90SN(1)(b) of the Act, “impractical” and that the December 2019 consent orders should be varied to include the “overlooked” provision as well as other provisions that would enable the orders as varied to be carried out.
His case was that the second set of allegations should be regarded as proven with the consequence that the December 2019 consent orders could be varied on the section 90SN(1)(a) ground of a miscarriage of justice due to “false evidence”.
It is settled law that the section 79A(1)(a) miscarriage of justice provision relates to a miscarriage of justice in the making of the orders, not events that have occurred since. I regard the authorities dealing with section 79A(1)(a) as equally applicable to the similarly worded section 90SN(1)(a).
It is crystal clear that section 90SN(1)(b) (and the similarly worded section 79A(1)(b)) relates to events that have arisen after the impugned orders were made. This is self-evident from the words of the subsection (b), “in the circumstances that have arisen since the order was made it is impractical for the order to be carried out or impractical for part of the order to be carried out”. Hence the Father's “overlooked” set of allegations, even if proven, cannot be a basis for the exercise of the power in section 90SN(1)(b).
I raised with the Father's solicitor at the post hearing mention that it may be that the “overlooked allegations” may fit within section 90SN(1)(a), “miscarriage of justice”, rather than section 90SN(1)(b) “impractical” and whether he wished to rely upon section 90SN(1)(a), miscarriage of justice, as well as the section 90SN(1)(b) “impractical” provision. The Father's solicitor told me he would so rely on section 90SN(1)(a) and I will permit him to do so.
As referred to earlier the interpretation of a court order is an objective process. It is settled law that a party's current statement of what their intention was, is not relevant and hence inadmissible as to the interpretation of an order.
If a court or the parties had to determine what either or both of the parties' intentions were when it came to the interpretation of an impugned order the administration of justice would be interminably delayed, chaotic and the principle that there should be an end to litigation would be defeated. Controversies would never be quelled, only replaced with another but elastic measure: what did the parties or either of them intend?
However a parties' intention may be admissible when the matter of mistake is pleaded and I am prepared to treat the “overlooked” set of allegations as a pleading or allegation of mistake.
The Father's affidavit filed 16 October 2020 at [18] included the following:
“The applicant has deliberately stalled the court proceedings as she has been unable to provide the above proof and I believe that she is deliberately trying to mislead the court in regard to what has previously, on numerous occasions, been ordered or consented to that being, that I received 30% of the value of the property from which I am to pay out my caveat.”
When I first read this paragraph, I regarded it as an allegation that the Mother was deliberately trying to mislead the court as to what the meaning of the court order was. Although not articulated before me, and it was not explored with her in cross examination, I will consider whether this is an allegation by the Father that the Mother had made the same mistake, that is also overlooked the 30% equity payment provision or had been aware of the Father's mistake and taken advantage of it. I note that this could be said to be an interpretation of this paragraph that is generous to the Father.
I have looked at the available contemporaneous records and circumstances to assist determination of these issues as well as considered the parties credit. They are as follows.
1. The Mother's initiating application.
The Mother's Initiating Application was for orders (in a form consistent with the courts pro forma omnibus property orders) to the effect that the whole of the Father's interest in the C Road Property be transferred to her without any payment to the Father and that application did not seek a superannuation splitting in order but sought at 13(a) as part of the usual catch all order that, “Each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other”.
2. The Mothers position on 11 September 2019
The matter was before another Judge of this Court on 11 September 2019 and the Mother articulated her case that she wanted to retain the home and refinance the existing mortgage but that she could not borrow sufficient to make a payment to him as well as refinance the existing mortgage and pay her own outstanding legal fees. Her position, whether reasonable or not, was unequivocal. I point to the following passage of transcript from that day:
MS KUZMAN: I've looked at the repayments for the amount that I can borrow.
HIS HONOUR: Yes.
MS KUZMAN: This is my issue and I'm being honest here. I've looked at the amounts that I can afford to pay if I was to refinance. And after I pay my legal fees that I have and the personal loan and do a combination of everything, I can't afford to pay him out anything.
3. No evidence of change of position
There is no evidence or even allegation that between 11 September 2019 and 3 December 2019, the day the December 2019 consent orders were made, that there was any change in the Mother's position or any communication of a different position to the Father.
4. The Mother's position on 3 December 2019
On 3 December 2019 the matter came on for final hearing before the same Judge. Neither of the parties had filed any proper evidence to deal with the issue of the dispute as to the value of the former matrimonial home. It appears that, after prompting by the Judge, each party intended to rely upon different real estate agents to give oral evidence the following day.
The Trial Judge was prepared to overlook the unsatisfactory nature of this foreshadowed evidence and was doing his best to simply get the matter on so that the parties' dispute could be resolved. The Mother complained that the Father had failed to provide profit and loss and balance sheets that would enable his business, which he conducted through a proprietary limited company, to be valued. The Father's counsel proposed to call an accountant (not on affidavit) the following day. The efforts of the Judge to try and get a hearing ready to proceed that day or the next despite the chaos and absence of evidence must be, with respect, commended. His Honour was putting substance to the command of section 42 of the Federal Circuit Court Act 1999 (Cth).
I note the following parts of the discussion before the matter was stood down:
HIS HONOUR: No, you don't need his consent. You go to a bank, you knock on their door and say I want to borrow some money. How hard is that?
MS KUZMAN: But I can't afford to pay out; that's why I asked.

At another point there was also a discussion about superannuation:
HIS HONOUR: Alright. Good. Total super is- well, no, that's not agreed either. Superannuation F: 68 by the respondent, and 40; he says 64. So have you seen any statements about the super?
MS KUZMAN: I believe the 68 is the current value. The last time we were here, your honour, you said to get the opening when we first commenced.
HIS HONOUR: Yes I want the current values. You look at it at the time of the court hearing.
The matter was stood down for telephone calls to be made to arrange the necessary witnesses to attend court. The matter resumed after lunch at 2:18pm. At that point the court was advised that the parties may have settled, "possibly". I note the following passage:
HIS HONOUR: Right. Thank you. Now, the applicant; your experts, are they available to be called?
MS. KUZMAN: Yes, but I think we may have settled, your Honour, possibly.
HIS HONOUR: Do you think or ---
MS KUZMAN: Well, we were just, sort of, discussing something before and ---
HIS HONOUR: Do you need more time to discuss that or not?
FATHER'S COUNSEL: Yes, I think it would- we were just on a point that needs clarification.
HIS HONOUR: Okay. All right.
FATHER'S COUNSEL: And I think I've got to that now.
5. Proposed orders read out by Father's counsel
The matter was stood down until 3.00pm and resumed 3.44pm. The Judge asked of counsel, “…proposed final orders, property; what do they provide for, sir?"
It is clear that the Court had been provided with the hand written minutes that are on the Court file and marked A. Thereafter the Father's counsel read out the orders to the court, verbatim, from what is now paragraph 1 to the first four words of paragraph 5 (the paragraphs had not been numbered on the hand written minutes and the Judge numbered the paragraphs for the parties), the Judge read out the orders from that point to the end of paragraph 5 and observed, "I can read the rest, thanks".
There was then a discussion about some interim orders made previously and that a dispute about a child's surname was said not to be before the Court. The Father's counsel then continued:
FATHER'S COUNSEL: the clause 4 the balance in superannuation, has been - that's it. That completes the---
HIS HONOUR: It's provided for in the orders in the circumstances.
FATHER'S COUNSEL: Yes.
HIS HONOUR: I follow that. The real benefit to you is retaining, or the opportunity for retaining, the home. I might not have given you that and, certainly, I might not have given you 70%. I think the outcome for you, in the range of things, is one you can be comfortable with, from my reading of the papers and so this should be the end of all. All right. Okay. Thanks.
MS KUZMAN: Well, property, yes your honour.
HIS HONOUR: thank you.
MS KUZMAN: But not the children.
HIS HONOUR: thank you. Take a seat. In the matter of S and C there will be final property orders in terms of this minute by consent, and the court makes a further ordered that, otherwise, all applications be dismissed. Thank you. The solicitors for the respondent husband to in gross.
FATHER'S COUNSEL: if your honour pleases.
HIS HONOUR: We shall adjourn.
The Judge had added by hand to the hand written minutes, “8. All applications be dismissed”, but this clause 8 was not included in the order as engrossed.
6. Father's solicitors engrossed minute
I was told that in fact the Father's solicitors engrossed the order and sent it to the court. Accordingly had the 30% payment to the Father provision been overlooked there were two opportunities, after the orders had been drafted, and before they were formally engrossed in the court’s record for the Father's lawyers to have noticed the error: when the orders were being read out in court and when they were engrossed from the handwritten minute.
7. The equalisation of superannuation provision
Paragraph 7 of the orders bears repeating, “In the event that the property is sold, there be an equalisation of superannuation between husband and wife”. In the circumstances where the Judge had that day told the parties, as set out in the passage above, “Yes, I want the current values”, it is difficult to see that the term equalisation of superannuation, meant other than equalisation of superannuation of the balances as at the time of hearing and I so find notwithstanding the unfortunate imprecision of the term "equalisation of superannuation". I so find notwithstanding that the Mother had annexed to her affidavit filed on 3 December 2019 statements of account balances of the parties’ superannuation approximate to the start and finish their cohabitation.
The transcript shows that on the day of the December 2019 consent orders there was not precise agreement as to superannuation but the differences were relatively minor. The Father's amended case summary outline filed on 2 December 2019 set out the parties' superannuation in a table I reproduce as follows:

Superannuation

Ownership

Applicant/Respondent/Joint

Value

Superannuation F

Respondent (Father)

$64,085.29[1]

Superannuation G

Respondent (Father)

$38,790.08

Superannuation H

Applicant (Mother)

$18,000.00

Superannuation I

Applicant (Mother)

Not Known

Total Superannuation:

$120,876.27

[1] The Mother was asserting this balance was $68,000.

Hence on the Father's case, of the known superannuation, an equalisation of superannuation balances at hearing would have meant following calculations: $120,876.27 at 50% = $60,438: Less the Mother's superannuation balance of $18,000 = $42,438.
It is clear and I find, despite the imprecision of the terms used by the parties, that in the event that the mortgage debt was not refinanced by the Mother the property would be sold and in that event, but not otherwise, there would be an equalisation of superannuation of the balances at hearing. I find that the equalisation of superannuation would have been of a substantial sum and in the order of $42,000 of a superannuation payment split.
There was no explanation put, on the Father's “overlooked” allegations case, as to why the Mother would benefit from a substantial superannuation payment split upon the default sale (if she was unable to refinance the existing mortgage) where the Father would be receiving 30% of the remaining equity in the property after sale expenses, but would not benefit from a substantial superannuation payment split upon her refinance, retention of the property and payment of a sum equivalent to 30% of the equity to the Father.
The Mother pointed to the provision of the words, “In the event that the property is sold” as meaning simply that if she was able to refinance the property the Father did not receive any payment but he retained all his superannuation and conversely, if she could not refinance the property the Father received 30% of the equity in the property, but he lost and she gained, a substantial amount of his superannuation. The 30% equity in the property and the amount would be lost by him in a superannuation payment split were not identical but doing the best I can with all of the imprecision of the case it appears to me the sums were in the same ballpark.
On the Mother's case, no refinance and the Father receives the 30% equity being about $50,000 (less 30% of the selling expenses) but there is a superannuation payment split to the Mother, from the Father's superannuation, of something in the order of about $42,000. If the Mother refinances the Father misses out on the 30% equity payment of about $50,000 but does not suffer a loss of superannuation of about $42,000.
Save for the allegation at paragraph 18 of the affidavit previously referred to, it was not otherwise agitated or explored in submission or cross examination of the Mother that she had also “overlooked” the 30% equity payment provision or that she was at the time aware of that being “overlooked” by the Father's side and remain silent or taken advantage of that error.
I do note and have taken into account the circumstance that ordinarily, or at least ordinarily if the orders were drafted in the conventional manner, the implied provision that it is common ground should be implied would be drafted along the lines of:
“On or before ‘X date’, the Father transfer all his right title and interest to the Mother”
Or
“On a before ‘X date’, the parties do all acts and things and sign all necessary documents to cause and the effect that the Father transfer all his right title and interest to the Mother”.
If there was to be a payment the conventional drafting would have the payment and the date of the payment as the first order and the transfer of the Father's interest to the Mother ordinarily follow and be expressed to be "contemporaneously with the payment". Although the argument was not put to me I accept that the omission of such an important provision as the Father transferring his interest to the Mother is at least consistent with the “overlooking” of the 30% equity payment.
8. No discussion of a 30% equity payment until after 13 May 2020 hearing
A further objective or common ground fact is that it was not agitated in any communication or email either the fact that the Father was to be paid an amount equivalent to 30% of the equity or the figure that that would amount to. Ordinary human experience would expect such a discussion and specification of the amount to be paid. There is no evidence of such discussion or specification.
I take account of the Mother's position that there was no error or mistake and certainly none on her side. My assessment of her credibility means that I do not regard her as lying. I find that she has been truthful in her evidence and submissions to me.
I do not find that the Father has been untruthful in his evidence or statements to me. I do not exclude that he believed that he was to receive a payment equivalent to 30% of the parties' equity in the property upon a refinance. I do not exclude some miscommunication between the Father and his lawyers that, notwithstanding when he signed the handwritten minutes of orders and there was no provision in those minutes for him to receive a payment upon the Mother refinancing the property, he still believed that he would. His then instructing solicitor, who was at times present on the day, and who or whose firm engrossed the orders without such provision, appearing as the Father's counsel before me, told me that counsel he had instructed on the day, had overlooked that provision. I place some weight upon that proposition or concession put to me.
I also take into account that is common ground that an important provision was actually overlooked. Properly drafted, that provision would have said something like, “Contemporaneously with the Mother causing the existing mortgage debt secured upon the said property to be refinanced and discharged, the Father transfer all his right title and interest in the said property to the Mother.” The fact that such an important provision was actually overlooked is a matter that contends to the position advanced by the Father that the 30% equity payment provision was also overlooked.
I also take into account that after a relationship of about six years of cohabitation with a further three years of post-separation contribution, so that is about nine years of contribution by the parties to the time of the impugned consent orders, with two young children of that relationship living with the Mother but with at least some child-support being paid from time to time, a circumstance where the Mother would retain all of the equity in the parties only known substantial asset but not benefit from a superannuation adjustment, would be an unusual and unlikely result. A court would not ordinarily with parties' of this age make such orders. If the parties were in their mid-50s or 60s treating superannuation as equivalent to cash or equity in a property would not be remarkable.
However taking all of those matters into account I find that the scheme of the orders as made was that if the Mother was able to refinance the existing mortgage debt secured upon the property she was to retain all of the equity in the property upon it being transferred to her but she would not obtain any superannuation payment split in her favour. If the Mother did not finance the existing mortgage debt, after selling expenses, the proceeds of sale would be divided so that the Father received a payment equivalent to 30% of the equity in the property and the Mother the balance, but the Mother would receive a superannuation payment split of a sum in the ballpark of what that 30% payment to the Father would have been. I find that the Mother was not mistaken as to the provisions of the December 2019 consent orders and I do not find that the Mother was aware of the mistake on the Father's side, if one was made, or that she took advantage of such mistake.
I make these findings because of the eight objective or contemporaneous circumstances set out above as well as the Mother's demeanour as a witness and as her own advocate before me.
UNILATERAL MISTAKE
A mistake may have been made on the Father's side. If so, it was a unilateral mistake. It is settled law that a unilateral mistake of law or fact by one party that is not caused by or known to the other party, is not a basis for a miscarriage of justice pursuant to section 79A(1)(a). See Bigg v Suzi at 84,983:
``... in our view the circumstances in which a court may find that there has been a miscarriage of justice under s 79A are not necessarily limited to those in which a court of equity would set aside consent orders. However, if as we have concluded, it can be shown that there has been a unilateral mistake by one party known to the other such that a court of equity might set aside the orders, we cannot see how it could possibly be argued that there was not a miscarriage of justice. Certainly, in such circumstances this Court could not conclude, on appeal, that it was not open to a trial Judge to conclude that such a miscarriage of justice had occurred.'' [Emphasis added]
6.43 It will be seen that an essential ingredient, referred to in that case, of a proper basis for a claim of miscarriage of justice based upon the unilateral mistake of the applicant, is knowledge of that mistake by the other party to the order at the time the order was made. It is that ingredient of knowledge by the wife of his mistake which is missing from the husband's particulars.
6.44 In the factual context of this case, the knowledge on the part of the wife which the husband would need to be able to prove in order to establish a miscarriage of justice would be knowledge not just of the promise made to him by her father, but also knowledge of the erroneousness of the husband's expectation of benefit, based upon that promise.
That decision relied upon a contract case in the High Court of Australia, Taylor v Johnson (1983) 151 CLR 422 (‘Taylor v Johnson’). The High Court there observed at p. 431-432:
In such a situation it is unfair that the mistaken party should be held to the written contract by the other party whose lack of precise knowledge of the first party's actual mistake proceeds from wilful ignorance because, knowing or having reason to know that there is some mistake or misapprehension, he engages deliberately in a course of conduct which is designed to inhibit discovery of it. Our comment can, for present purposes, be limited in its application to the case where the second party has not materially altered his position and the rights of strangers have not intervened.
Taylor v Johnson has been referred to with approval many times since including for example in Byrnes v Kendle (2011) 243 CLR 253 at [101]:
“In consequence the actual state of mind of either party is only relevant in limited circumstances, for example, where one party relies on the common law defences of non est factum or duress; where misrepresentation is alleged; where one party is under a mistake and the other knows it.”
Taylor v Johnson is settled law and remains so notwithstanding consistent criticism of that decision by some learned authors (see: R Meagher, J Heydon and M Leeming, Meagher, Gummow and Lehanes Equity: Doctrines & Remedies (LexisNexis Butterworths, 4^th ed, 2002) at 14-045 and 14-050 and J Heydon, M Leeming and P Turner, Meagher, Gummow and Lehanes Equity: Doctrines & Remedies (LexisNexis Butterworths, 5^th ed, 2015) at 14-045 and 14-050).
In Lowe v Harrington (1997) FLC ¶92-747 it was found that the husband had known of the mistake in the orders that the wife and her advisers were making. To know of the mistake of the other party and to take advantage of it may amount to a miscarriage of justice within section 79A(1)(a). In this case, the Full Court of the Family Court of Australia said:
However, if as we have concluded, it can be shown that there has been a unilateral mistake by one party known to the other such that a Court of Equity might set aside the orders, we cannot see how it could possibly be argued that there was not a miscarriage of justice within the section. Certainly, in such circumstances this Court could not conclude, on appeal, that it was not open to a trial Judge to conclude that such a miscarriage of justice had occurred.
In this case I do not find that, if there was a mistake on the Father's side, the Mother knew of it or knowing of it, stood silent or took of advantage of it.
The Father's application, pursuant to section 90SN(1)(a) based on unilateral mistake and miscarriage of justice and/or pursuant to section 90SN(1)(b) based on “impractical”, fails.
MOTHER’S APPLICATION
I now turn to the Mother's application which was, by the end of the hearing, pursuant to section 90SN(1)(b) to vary the December 2019 consent orders to revise the time for refinance and for the common ground missing provision about the Father transferring all his right title and interest be included but to the effect that he transfer to the Mother “or her nominee” and for a superannuation split if the Father did not pay his former solicitor to obtain the lifting of the caveat.
The Mother’s evidence was that she had obtained approval of finance with the assistance of her parents. The assistance was very significant. Upon questioning and cross examination it became apparent that the parents were to be the registered proprietors of the property, obtain finance in their own names, whether or not the Mother was a co-borrower or guarantor, and hold the property on trust or the Mother.
The Father's case was that the Mother had deceived him and the court about the extent to which her parents were to assist her obtain finance. I do not find this is so.
At paragraph [8] of her affidavit filed 2 December 2019 the Mother asserted as follows:
"My father Mr A Kuzmin has now applied for financial approval in the meantime to satisfy the courts should my loan not be approved".
Mr A Kuzmin is already and has been for many years the guarantor, with the Mother's mother, of the finance that enabled the purchase of the home. I also take this into account as a contribution on the Mother's side and as a relevant factor in my decision pursuant to section 90SF(3)(r) of the Act.
Hence it is clear that the Mother's position as at the time of the making of the orders was that if required she would seek and obtain the assistance of her parents to refinance the existing mortgage debt obligation. In the circumstances where it is common ground that those same parents were already guarantors of that liability and that liability was secured over their own property as well as the C Road Property this should have been unsurprising.
In the Mother's affidavit of 11 May 2020 at paragraph [3] she alleges that on 8 January 2020, five days after the deadline for refinance, the Father had contacted the banker of the Mother's father to advise that he did not approve of the transfer and that the house was going to be sold.
I find that the Father was aware, or should have been aware, that the Mother may require the assistance of her parents. The conventional way to draft the orders, had the parties turned their minds to it, would have included a clause something to the effect:
"On or before X date the Father transfer all his right title and interest in the C Road Property to the Mother or her nominee".

I do not accept the Mother's claim that she should have, upfront in superannuation interest in regard to what she may pay in regard to the additional $22,364 payment on the Father's behalf to Mr A. The Mother's approach is that the effect of the December 2019 consent orders, as she says they should have been made, is all I need to worry about and, by inference, that I need not consider 90SM(4) and the provisions of section 90SF(3).
I find that I must take into account the fact of the 2019 December consent orders and the fact that the parties conducted the proceedings in the manner that they did and I do so pursuant to section 90SF(3)(r). However I am still obliged as a matter of law to take into account the parties financial circumstances, the assets and liabilities as best I can make them out and the provisions of 90SM(4) and the provisions of section 90SF(3).
If I make the orders the Mother seeks, but only carve off a quid pro quo $22,364 (not the $42,000 she seeks) from the Father's superannuation to the Mother in a superannuation split the effect of the orders would be of the pool of non-superannuation assets the Father would receive payment of his legal bill to Mr A of $22,364 and retain his business of $5,000 or about 17.5% of the very approximate pool as set out above if I assume that the value of the property is that agreed for the purpose of negotiations. The Father would retain in superannuation, on his figures, about $80,000 in superannuation or about 65% of the whole.
The circumstances are that the parties started their life together with very little in assets but each bought in some superannuation. Relative to the amount of superannuation that now exists the Father brought in substantial superannuation being $26,572.73 from Superannuation F and $5668.20 from Superannuation G. The Mother brought in in 2011 $1,092 from Superannuation I (see page 53 of 85 of the Mother’s Affidavit filed 2 December 2019 that shows as at 30 June 2011 the Mother’s superannuation was in that amount).
Given the ages of the parties and taking account of the nature, form and characteristics of their assets and their liabilities I cannot regard superannuation as equivalent to cash or equity in a property.
I cannot make findings as to the disputed but untested allegations of financial mismanagement including non-payment of the mortgage. I am left with the position that income or funds available during a relationship are presumed to be applied for the purposes of the relationship unless proved otherwise, see the Full Court in Parshen & Parshen (1996) FLC ¶92-270 (Parshen).
Notwithstanding the disputes between the parties as to so many things I find for the purposes of section 90SM(4) that the Father has made a substantial contribution to the non-superannuation assets and that that contribution is, roundabout, a little less than close to equal contribution. That contribution was mostly working in paid employment and to a lesser degree contribution as parent. For the purposes of section 90 SF(3) I find that the Father has a greater income than the Mother has at the moment and in the order of what he asserts it to be of about $135,200 per annum.[5] The Father has re-partnered. The Mother alleges but I cannot find that the Father's partner is recorded as an employee of his business.
[5] Father’s financial statement filed 21 October 2020, $2600 per week.
I find that the Mother has made a substantial contribution. Mostly by way of home maker and parent to the parties’ children and to a lesser degree by working in paid employment. Her parents undertook the risk of guarantee of the substantial borrowing of the parties to buy the property and I regard this as a contribution by her. Her substantial contribution within the meaning of section 90SM(4) is, roundabout, a small amount more than equal contribution.
The children live with the Mother and her obligation to care for them as well as to care for her two older children from prior relationships impact significantly on her ability to pursue her career and earn her income. The Father pays child support but has been in arrears and is still in arrears but only to a modest degree. The Mother's future prospects of employment or self-employment are substantial. She is obviously an intelligent person and a trained and qualified accountant. As the children grow older and consume less of her time to care for them she will be able to concentrate to a greater degree upon pursuing her career than she has been able so far. Currently the Mother earns the sum of $800 per week or about $41,000 per annum. Those circumstances mean that there should be an adjustment in her favour of a significant amount relative to the modest size of the asset pool and about 15 to 20% pursuant to section 90SF(3).
However it is not just and equitable to vary the orders, or if I regard the variation as so significant that I am in substance setting aside the orders and making new ones, in light of the parties' contributions to their assets and liabilities and the section 90SF(3) factors, as the Mother now seeks.
I note that the Mother in fact seeks that I order that the Father pay the outstanding legal fees to Mr A and this would be effectively from income. On the very approximate asset pool above this would mean that the Father would receive approximately 3% of the parties' assets and 65% of their superannuation and retain the potential claim against his solicitors.
In the circumstances of the fact of the December 2019 consent orders and the manner in which the parties conducted the proceedings and the circumstance of the potential claim against the solicitors and the matters considered above, I find that it is just and equitable taking all of those matters into account to order that the Mother retain the equity in the home if she is able and pay on behalf of the Father the outstanding fees to Mr A but that there be no superannuation splitting order. The effect of this is that the husband will retain only about 17.5% of the above very approximate pool of assets but he will retain on his figures or the Mother’s about 84% of the parties superannuation.
In the event a default sale comes to pass I find it is just and equitable in all of the circumstances that the equity in the home be divided after selling expense 70% to the Mother and 30% to the Father and I note, a division the parties had previously agreed was applicable in the event of a default sale. I give only some weight to what the parties had agreed and more to the manner in which they conducted the proceedings before me. That leaves the issue of whether there should be a superannuation split in the event of a default sale in which case the Mother will not pay the outstanding fees to Mr A but the Father will obtain 30% of the equity in the property having regard to the net proceeds of sale after all selling expenses including conveyancing and agents commission and the amount outstanding on the mortgage, but on the basis that that mortgage will be regarded as it was at the hearing before me of $328,000.
Taking all of the circumstances and the relevant provisions of the Act into account I find that in the event of a default sale taking into account all of the matters addressed above a 70/30 split in the Mother’s favour of the equity in the property would be just and equitable.
The last written submissions of the Father and the position put in the Mother's outline of case filed on 2 December 2019 is consistent with what was once an approximate rule of thumb in the case In the Marriage of West and Green (1993) FLC ¶92-395. That is, only the additional contributions or increase to superannuation during the relationship or marriage are divided between the parties and then they are divided equally. This approach can be useful for solicitors in negotiating an outcome particularly where there is a small amount of superannuation amongst young parties far from retirement. However it is not the law that this is the way to deal with superannuation in the era of superannuation splitting orders. If superannuation is to be divided other than by agreement after identifying the value of the parties superannuation whether there should be a superannuation splitting order or not is determined by the application of contribution in accordance with section 90 SM(4) and the relevant section 90 SF(3) factors.
Taking into account the age of the parties' and the Father's greater contribution to the superannuation by bringing in more superannuation at the start of the relationship the superannuation split should only in the case of the default sale and not otherwise, be to give effect to an overall 60/40 split in the Father's favour. This would equate to a superannuation split from the Father's superannuation of $29,000 and I find that a superannuation split in that amount, if the default sale comes to pass, is just and equitable taking account all of the matters referred to above.
As a consequence of the Mother’s affidavit filed 9 November 2020 relating to the Father’s Superannuation G fund, I am satisfied that the Trustee(s) of the Superannuation G fund has been accorded procedural fairness as to the form of the order as to regard to the superannuation payment split in the event of the default sale.
I will order that within 14 days the Father do all acts and things necessary to prepare for, in accordance with Victorian PEXA conveyancing requirements, the transfer of all his right title and interest in the C Road Property to the Mother. In the event he does not do so the Mother will have liberty to apply for orders pursuant to section 106A of the Act for a Registrar of the Court to execute any necessary PEXA or Victorian conveyancing authority required by the Mother’s conveyancing agent to give effect to these orders.
That transfer will not take place unless the Mother is able to discharge and refinance the existing mortgage liability and pay to Mr A on account of the father in the sum of $22,364.
In the end I find it is just and equitable and more practical to set aside the existing mess of orders (and taking into account of the authorities discussed) and make new orders but at the same time accommodate, to the extent that I am able the manner in which the parties conducted the proceedings before me, that is to retain the scheme of the orders.
In regard to the date of the refinance the Father's position was that the date could be extended to 30 November 2020. The Father filed a further submission as to superannuation on 13 November 2020. On the morning of the second day of the hearing, 22 October 2020, the Mother advised and I accept that the offer of finance had been extended for a further 90 days. In all of those circumstances I have been able to deliver this judgement on Thursday 3 December 2020 and in that circumstance the mother should have until Friday 29 January 2020 to put in place the necessary conveyancing and finance arrangements. If she cannot, and the Father has complied with these orders, the default sale provision, with the 30% equity payment provision and the superannuation split will take place.
I set out as Schedule C, the draft orders that I propose to make. I give the parties the opportunity to comment as to whether there is any unforeseen practical difficulty or error in the draft orders. Those orders are to give effect to my findings and reasons.

I certify that the preceding one hundred and ninety-three (193) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.
Associate:
Dated: 3 December 2020
SCHEDULE A – FATHER’S DOCUMENTS
(1)Financial Statement of Mr Russo 30 August 2019;
(2)Amended Case Summary Outline filed 2 December 2019;
(3)Affidavit of James McConvill affirmed 18 March 2020 and filed 20 March 2020;
(4)Application in a Case filed 23 March 2020;
(5)Affidavit of Rebecca Jane Leslyee Cann filed and sworn 13 May 2020;
(6)Application in a Case filed 19 June 2020;
(7)Affidavit of James McConvill filed and affirmed 19 June 2020;
(8)Affidavit of Mr Russo affirmed 8 October 2020 and filed 9 October 2020;
(9)Response to Application in a Case filed 9 October 2020;
(10)Affidavit of Mr Russo affirmed and filed on 16 October 2020;
(11)Affidavit of Ms J (Husband's Mother) affirmed and filed 16 October 2020;
(12)Application in a Case filed 19 October 2020;
(13)Financial Statement filed 21 October 2020;
(14)Affidavit of Mr Russo filed 21 October 2020;
(15)Further written submissions filed 13 November 2020; and
(16)Affidavit of Mr Russo filed 30 August 2019 (confirmed to be relied upon at the mention held on 5 November 2020)

SCHEDULE B - MOTHER’S DOCUMENTS
(1)Initiating Application filed 2 October 2017;
(2)Financial Statement sworn 29 May 2019 and filed 5 June 2019;
(3)Affidavit of Ms Kuzmin filed and sworn 2 December 2019;
(4)Outline of Case of Ms Kuzmin filed 3 December 2019;
(5)Affidavit of Ms Kuzmin filed 11 May 2020 and Exhibits;
(6)Affidavit of Ms Kuzmin sworn on 27 May 2020 and filed 28 May 2020;
(7)Application in a Case filed 29 May 2020;
(8)Affidavit of Ms Kuzmin filed 5 October 2020;
(9)Application in a Case filed 6 October 2020;
(10)Affidavit of Ms Kuzmin as to procedural fairness as to Father’s Superannuation G fund filed 9 November 2020;
(11)Exhibit M1 - Title Search and Copy (tendered at trial)
(12)Affidavit of Ms Kuzmin sworn 29 May 2019 and filed 5 June 2019 (confirmed to be relied upon at the mention held on 5 November 2020).

SCHEDULE C - DRAFT ORDERS
(1)The Mother, Ms Kuzmin (“the Mother”), on or before Friday 29 January 2021 (“the Refinance Date”), pay, refinance and discharge all payments and liability pursuant to the registered mortgage number …7Q to National Australia Bank (“the mortgage”) of or with respect to the real property known as C Road Town D in the State of Victoria (“the C Road Property”) of whatsoever nature and kind (“the Mortgage Refinance”).
(2)Contemporaneously with the Mortgage Refinance the Mother pay, on behalf of the Father, Mr Russo, the sum of $22,364 to A Lawyers, to enable the caveat lodged against the title to the C Road Property to be withdrawn (“the Caveat Payment”).
(3)Contemporaneously with the Mortgage Refinance and the Caveat payment, the Father do all such acts and things and sign all such documents as may be required to transfer and/or authorise the transfer to the Mother, or her nominee (which may include her parents) at the expense of the Mother all of his right, title and interest in the C Road Property and being the whole of the land more particularly described in Certificate of Title Volume …0, Folio …8 (“the Transfer”).
(4)Contemporaneously with the Mortgage Refinance the Mother indemnify the Father against all liability relating to the mortgage and all taxes including income taxes, capital gains tax and all apportionable rates, taxes and outgoings.
(5)For the purpose of the Transfer, the Father, within 14 days of these orders, comply with all and any request, or requirement, by the Mother’s conveyancing agent relating to any PEXA or conveyancing requirement made for the purpose of, and in anticipation of, the Mortgage Refinance and Transfer (the PEXA/conveyancing requests).
(6)In the event the Father fails to comply with ant of the PEXA/conveyancing requests within the time specified then the Mother has liberty to apply on short notice for the purpose of section 106A of the Family Law Act 1975 (Cth).
(7)In the event that the whole of the Caveat Payment has not been made and the Mortgage Refinance made by the Refinance Date, then the Father and Mother sign all documents and do all things necessary, including comply with any requests as to PEXA/conveyancing to cause the C Road Property to be forthwith sold altogether out of court (“the Default Sale”), and upon completion of the Default Sale, the proceeds of the sale be applied:
(a)First, to pay all costs, commissions and expenses of the sale including conveyancing;
(b)Second, to discharge the mortgage and any other encumbrance affecting the real property;
(c)Third, to divide the net proceeds of sale 70% to the Mother and 30% to the Father on the basis of a mortgage balance of $328,000 with any shortfall arising from the mortgage balance being greater than $328,000 to be adjusted from the Mother’s share or her 70%.
(d)From the Father’s share or his 30% the sum sufficient to discharge his liability to A Lawyers to effect a withdrawal of caveat no. …0N search be paid to A Lawyers.
(e)From the Mother’s share or her 70% the sum sufficient to discharge her liability to Victoria Legal Aid to effect a withdrawal of caveat no. ….1A be paid to Victoria Legal Aid and to discharge her liability to Mr K to effect a withdrawal of caveat no. …2Y be paid to Mr K.

(8)
(a)In the event of the Default Sale, and contemporaneously with the settlement of the Default Sale, and not otherwise, then, pursuant to Section 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of Mr Russo’s (born 1981) interest in the Superannuation G Fund the Trustee(s) shall pay to Ms Kuzmin (born 1985) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations2001 (Cth), using a base amount of $42,571.00 and there should be a corresponding reduction in the entitlement of the person to whom a splittable payment would have been made but for these orders.
(b)(b) This order is binding upon the Trustee(s) of the Superannuation G Fund 14 days after of service of this order on the Trustee(s) together with an affidavit of the Mother deposing that the Default Sale has occurred.
(c)(c) Until the Default Sale has occurred the parties be and are hereby restrained from serving this order upon the Trustee(s) or attempting to give effect to this superannuation payment splitting order.

(9)Pending the Caveat Payment and the Refinance or completion of the Default Sale:
(a)The Mother have the sole right to occupy the C Road Property and that during such right of occupation the Mother pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;
(b)The parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c)Neither party encumber the real property without the consent in writing of the other party save to the extent necessary to comply with these orders.

(10)Unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possession, and like chattels in the C Road Property being deemed to be in the possession of the Mother.
(b)Monies standing to the credit of the parties in any join bank account are to become the property of the Mother.
(c)Each party retain any superannuation benefits belonging to or earned that party.
(d)Insurance policies remain the sole property of the owner named thereon.
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

(11)All extant applications be otherwise dismissed.

[2020] FCCA 3291

3 December 2020

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Evidence

Legal Concepts

Consent

File number:	MLC 10140 of 2017
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	3 December 2020
Catchwords:	FAMILY LAW – property – where final orders were previously made by consent– orders unable to be implemented – unilateral mistake – machinery provision – whether application to vary should be considered – vary or set aside – where a superannuation split is sought – pro forma orders – orders made
Legislation:	Evidence Act 1993 (Cth), s 140 Family Law Act 1975 (Cth), ss 79A, 90SF, 90SM, 90SN, 90XT and 106A Federal Circuit Court of Australia Act 1999 (Cth), s 42 Federal Circuit Court Rules 2001 (Cth), r 103
Cases cited:	Bigg v Suzi (1998) FLC ¶92-799 Byrnes v Kendle (2011) 243 CLR 253 Harrison & Harrison (No 3) [2011] FamCAFC 241 In the Marriage of Langford and Coleman (1993) FLC ¶92-346 In the Marriage of Parker and Parker (1983) FLC ¶91-364 In the Marriage ofSimpson and Hamlin (1984) FLC ¶91-576 In the Marriage of Slapp and Slapp (1989) FLC ¶92-022 In the Marriage of West and Green (1993) FLC ¶92-395 Lowe v Harrington (1997) FLC ¶92-747 Parshen v Parshen (1996) FLC ¶92-270 Pendleton & Pendleton (2017) FLC ¶93-780 Stanford v Stanford [2012] HCA 52 Taylor v Johnson (1983) 151 CLR 422 Trustee for Estate of Lasic and Lasic (2009) FLC ¶93-402 Yunghanns v Yunghanns (1999) FLC ¶92-836 CCH Commentary: Australian Family Law & Practice Premium Commentary at [¶43-445] LexisNexis Australia Family Law Commentary at [s 79] 79 Alteration of Property Interests R Meagher, D Heydon and M Leeming, Meagher, Gummow and Lehanes Equity: Doctrines & Remedies (LexisNexis Butterworths, 4^th ed, 2002) 14-045). J Heydon, M Leeming and P Turner, Meagher, Gummow and Lehanes Equity: Doctrines & Remedies (LexisNexis Butterworths, 5th ed, 2015) at 14-045 and 14-050).
Number of paragraphs:	193
Date of last submissions:	13 November 2020
Date of hearing:	21 and 22 October 2020
Place:	Melbourne
The Applicant:	Appeared In Person
Solicitor for the Respondent:	Dr McConvill of James McConvill & Associates

MLC 10140 of 2017
BETWEEN:	MS KUZMIN Applicant
AND:	MR RUSSO Respondent

Superannuation	Ownership Applicant/Respondent/Joint	Value
Superannuation F	Respondent (Father)	$64,085.29[1]
Superannuation G	Respondent (Father)	$38,790.08
Superannuation H	Applicant (Mother)	$18,000.00
Superannuation I	Applicant (Mother)	Not Known
Total Superannuation:		$120,876.27