Mary & William

[2006] FamCA 1046

IN THE FAMILY COURT

OF AUSTRALIA

AT ADELAIDE No. (P)ADF208/2006

MARY Applicant

AND

WILLIAM First Respondent

REASONS FOR JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE BENJAMIN

DATE OF HEARING                   :     26 & 27 September 2006.
DATE OF ORDERS  :    17 October 2006.
DATE OF REASONS                  :     17 October 2006.
CATCHWORDS : FAMILY LAW - PROPERTY SETTLEMENT –SUPERANNUATION – INTERIM FLAGGING ORDER – DEFINED BENEFIT NOT YET VESTED - s90MU FAMILY LAW ACT 1975
APPEARANCES  :     Mr Berman of Counsel (instructed by Angela Ferdinandy) appeared on behalf of the applicant/wife.
:Ms Hurley of Counsel (instructed by Camatta Lempens) appeared on behalf of the respondent/husband.

Introduction

This is an application made by the wife in proceedings against the husband seeking interlocutory orders pursuant to s90MU(1)(b) of the Family Law Act. The wife seeks a flagging order, against the Trustees of the Judges’ Pensions Scheme, not to make any splitable payment in respect to the interest of the husband held in the scheme without leave of the Court, other ancillary orders and orders by way of injunction under s114 of the Family Law Act 1975 (“the Act”) to restrain the husband from resigning, retiring or making any election under the Pensions Act unless he gives the wife twenty eight days prior notice of his intention to take any such action. The wife also seeks an order for costs.
In his response the husband seeks an order that the wife’s application be dismissed and that the wife pay his costs of the interlocutory application.
Background
The husband is presently aged fifty six years and the wife fifty five years. The parties married in 1980 and separated in about May 2005. The parties were divorced in June 2006. Neither party has re-married.
There are two children of the marriage, namely, M aged nineteen and H aged sixteen.
The husband’s Counsel said that the Court could take as an agreed fact that the husband is living in another relationship, which was a de facto relationship where he was cohabiting with another person and had done so for twelve months.
The husband was appointed a State Court Judge in 2005 and remains a Judge of that Court. By reason of an appointment as a Judge the husband has or may have entitlements under the Pensions Act.
The evidence of the wife is that she presently earns $84.00 per week and is in receipt of spousal maintenance from the husband of $1,150.00 per week together with school fees, expenses and health insurance. The wife expresses concern that in the event of the husband’s death prior to the conclusion of these proceedings she may not be entitled to any interest under the Pensions Act and as such she seeks a flagging order under Part VIIIB of the Act.
The wife has provided procedural fairness to the Trustees of the Judges’ Pensions Scheme in that her solicitors wrote to the Managers of the Scheme on 12 July 2006 enclosing a copy of the wife’s application for a flagging order and supporting affidavit. The Team Co-ordinator of the Judges’ Pensions scheme replied, by letter dated 26 July 2006, indicating that Super SA does not have an objection to the proposed application and does not wish to be heard in relation to the application for orders.
The solicitor for the wife wrote again to the Managers of the Judges’ Pensions Scheme on 1 August 2006 asking whether the Trustee would recognise a formal undertaking by the husband in lieu of a flagging order. The Trustees replied on 11 August 2006 stating that;
“My understanding of the superannuation splitting regime under the Family Law Act 1975, is that the formal undertaking as proposed would not be binding upon the Trustee of the Judges’ Pensions Scheme”.
The Trustee provided information that the gross value of the husband’s superannuation interest in the Judges’ Pensions Scheme as at 31 July 2006 was $125,134.00.
The husband relied upon his affidavit sworn 13 September 2006. He said that in 2005 he was appointed a State Court Judge.
He went on to say that:
5.“By reason of that appointment, I may become entitled to a pension under the Judges’ Pensions Act 1971 (SA). This entitlement depends upon the duration of service, amongst other matters”
6.For example, if I resign my commission before turning seventy years of age, I will only be eligible for a pension under the [Pensions Act] upon the completion of ten years service and having also at the time turned sixty years of age. This situation could only arise, no earlier than 9 June 2015”.
The husband has informed the wife that:
“I have no present intention of resigning before the trial of the present property settlement proceedings …… I would not contemplate resignation for any reason unrelated to judicial office”.
The husband provided further evidence in terms of an affidavit of Mr L, a solicitor with C.
On 26 September 2006 that Mr L wrote to the administrators of the Judges’ Pensions Scheme saying, in the event that the Judge serves as a judge for less than ten years the solicitor understood that superannuation is dealt with by reference to provisions of the Commonwealth Superannuation Guarantee (Administration) Act 1993 and its regulations and the [Superannuation Act].
On 26 September 2006 the Managers of the Judges’ Pensions Scheme replied:
“The husband does not have an entitlement or pension under the Pensions Act until he has had not less than ten years judicial service and has attained sixty years of age. If he resigned prior to that date no pension would be payable, however his employer would need to meet the minimum requisite benefit of the Superannuation Guarantee (Administration) Act 1992.”
The husband’s entitlements under the Superannuation Guarantee (Administration) Act 1992.
The managers of the Judges’ Pensions Fund said that superannuation guarantee under the Superannuation Guarantee (Administration) Act 1992 had a value of some $14,446.00 gross at 26 September 2006. This being a notional value. Further correspondence the following day confirmed that if the husband qualified for the pension under the Pensions Act he ceased to be entitled to the minimum benefit under the Superannuation Guarantee (Administration) Act 1992.
The position with regard to the amount payable to the husband under the Superannuation Guarantee (Administration) Act 1992 is that it notionally accumulates until the Judge attains the age of sixty and completes ten years of service at which time any entitlement to a benefit under the Guarantee Act disappears.
In respect of the Superannuation Guarantee (Administration) Act 1992 entitlement these entitlements are no more than“expectancy”. See Re: Coram; ex parte Official Trustee in Bankruptcy (1992) 36 FCR 250 at 253-254. The statutory rights to such monies may never crystallise.
Counsel for the wife submitted that if the issue had been only in respect of the sum of about $14,446 under the Superannuation Guarantee (Administration) Act 1992 no application would have been made.
The is no money paid to a trustee in respect of the Superannuation Guarantee (Administration) Act 1992 entitlement and if it were to be payable the husband would have a discretion to direct the payment to a fund and/or trustee of his choosing. No fund comes into existence as set out above until both the husband retires from his commission and at the same time has no entitlement under the Pensions Act. I find that the entitlement under the Superannuation Guarantee (Administration) Act 1992 is not an eligible superannuation plan within the definition provided in the Act. It would only become a superannuation interest after the entitlement crystallised and upon payment to either the husband or to an eligible superannuation plan.
The husband’s entitlement under the Pensions Act.
Under the Pensions Act, s7 and s8 provide that;
“7Where a Judge resigns, and the Minister certifies that his resignation is due to permanent disability or infirmity, the Judge shall be entitled to the pension calculated in accordance with the section.
8That when a Judge dies and is survived by a spouse, that spouse shall be entitled to a pension for life at the rate of two thirds of the notional pension of that deceased Judge.”
The term “spouse” is not specifically defined in the Pensions Act. However, s17C of the Pensions Act defines a “non-member spouse” as having the same meaning as in Part VIIIB of the Act. In s90MD of the Act a “non-member spouse” is defined as being:
“In relation to a superannuation interest, means the spouse who is not the member spouse in relation to that interest”
The member spouse under that section means the spouse who has the superannuation interest.
A spouse is defined under the section as meaning “a party to a marriage”. No doubt the meaning of spouse and its impact on a superannuation splitting order in respect of the Pensions Act will occupy the attention of the trial judge in these proceedings.
Part 2A of the Pensions Act[1] is expressed to have been inserted to facilitate the splitting of superannuation interests, between spouses who have separated, in accordance with the Part VIIIB of the Act. Section 17D(2) of the Pensions Act provides that on application an eligible person is entitled to a statement of the value of an interest of a Judge as at a particular date specified in the application. That information has been provided to the wife.
[1] Entitled “Family Law Provisions” inserted 18.12.2003.
For the purpose of s17D of the Pensions Act it is assumed that a person holding office as a Judge on a prescribed date who has not attained the age of sixty years at that date will continue to serve as a Judge until he or she attains the age of sixty years.
The Pensions Act provides, at s17E, for the valuation of a Judge’s interest to be determined in accordance with Part 5 Family Law (Superannuation) Regulations 2001 (Commonwealth). The Pensions Act, at s17G, provides entitlement when the pension is in the growth phase. Section 17F provides that, in relation to a non-member spouse’s entitlement, the Treasury must, on receipt of a splitting instrument, create an interest for the non-member spouse named in the instrument. If the member spouse has less than ten years judicial service at the time of the splitting instrument, the Treasurer will create an interest for the non-member spouse when the member spouse attains ten years of judicial service or the member spouse ceases to be a Judge, whichever the first occurs.
A submission of the wife is that the husband’s entitlement under the Pensions Act is a “superannuation interest” other than an “unflaggable interest” for the purpose of s90MU of the Act.
A superannuation interest means an interest that a person has as a member of an eligible superannuation plan, but does not include a reversionary interest[2].
[2] s90MD of the Act.
The type of benefit to which the husband is entitled is the phenomenon where the amount standing to the credit of the member spouse is increased vertically on reaching a condition of release. The learned authors in Super Splitting on Marriage Breakdown [3] observe:
[3] Watts, Bourke, Taussig QC, “Super Splitting on Marriage Breakdown” CCH Australia Limited, Sydney 2001 at p 100.
“There are specific splitting options which apply to the percentage-only interest.
A percentage-only interest is one which is quite different in character from other types of superannuation.
A percentage-only interest is one which is prescribed by the Family Law (Superannuation) Regulation 2001 (FLA sec 90MD) the only type of superannuation interest which has been prescribed at the date of publication is an interest in the Commonwealth Judges’ Pension Act Scheme constituted by the Judges’ Pension Act 1968 …..
The explanatory memorandum provides the following explanation for the enactment of this type of superannuation interest: “the policy intention is that the interest that would be prescribed to be ‘percentage-only interest’ will be interest for which, because of extremely significant ‘cliff vesting’, the only appropriate and equitable method of splitting them is by specifying a percentage, rather than a value split”.
The Act provides a definition of a “percentage-only interest” in s90MD which provides:
“percentage-only interest means a superannuation interest[4] prescribed by the regulations for the purpose of this definition”.
[4] Superannuation interest is defined by s90MD as meaning “an interest that a person has as a member of an eligible superannuation plan, but does not include a reversionary interest”.
As at the date of this application the Pensions Act is not prescribed by the Family Law (Superannuation) Regulations 2001 as a “percentage-only interest” under Regulation 9A. The husband’s entitlement under the Pensions Act not a “percentage-only interest” within the meaning of the Act.
Counsel for the wife asserted that it is still a superannuation interest within the definition under s90MD.
A superannuation interest for the purpose of a flagging order under s90MU means an interest that the person has in eligible superannuation plan (see above). An eligible superannuation plan is defined in s90MD to include “a superannuation fund within the meaning of the SIS Act[5]”.
[5] SIS Act means the Superannuation Industry (Supervision) Act 1993
Under s10 (definitions) of the SIS Act a superannuation fund has been defined as meaning:
(a)       a fund that
(i)        is an indefinitely continuing fund; and
(ii)       is a provident, benefit, superannuation retirement fund; or
a public sector superannuation scheme.
A “public sector superannuation scheme” is defined by the SIS Act as meaning;
“a scheme for the payment of superannuation, retirement or death benefits, where the scheme is established:
(a)by or under a law of the Commonwealth or a State or Territory; or
(b) under authority of:
(i)the Commonwealth or the Government of a State or Territory; or
(ii)a municipal corporation, another local government body or public authority constituted by or under the law or Commonwealth or on a State or Territory.”
The husband’s entitlement to superannuation was created under the Pensions Act and as such is an eligible superannuation plan within the meaning of the Act and as such a court is able to make a flagging order in respect of such interest under s90MU of the Act.
Submission by the husband that a flagging order must be a final order under s79 of the Act.
The husband submits that a flagging order cannot be an interlocutory order, and it must be a final order as the power to make such an order derives from s90MS of the Act. The submission is that a flagging order is an order made under s79 and is made as an alternative to a splitting order. Section 90MS provides:
“90MS – order under s79 may include orders in relation to superannuation.
1.In proceedings under s79 with respect to the property of spouses, the Court may, in accordance with this Division also make orders in relation to superannuation interest of spouses.
2.A court cannot make an order under s79 in relation to a superannuation interest accept in accordance with this Part”.
The husband further submits that the revised explanatory memorandum, Family Law Legislation Amendment (Superannuation) Bill 2001, paras [180] and [181] says supports the primary submission;
… when a court is called upon to make a property settlement it may be that the actual value of the superannuation interest is unknown, but will become known in the very near future. While the regulations will provide for a method for valuing superannuation interests, a court may consider it more appropriate to “defer” a final decision on the superannuation and in the context of some or all of the property, until the actual value of the superannuation interest is known.
In such circumstances, a flagging order may be appropriate. Subsection 90MU(2) will provide that in deciding whether to make a flagging order, the court may take into account such matters as it considers relevant and, in particular, may take into account the likelihood that a split table payment will soon become payable in respect of the superannuation interest.
The submission is essentially that a flagging order is a final order regarding property under s79 of the Act and not an interim order to preserve the superannuation fund until a splitting order is made.
The explanatory memorandum to the Family Law Legislation (Amendment) Superannuation Bill 2001 (“Superannuation Bill”) sets out:
“In some circumstances, parties may wish to defer their agreement about how superannuation interest is to be divided, for example because the party withholds the superannuation agreement is in the condition of release, for example, retirement, at which time the actual value of the interest will be known.
The superannuation bill will provide that the parties will be able to make a “flagging agreement” which would act to prevent the Trustee from the superannuation fund from dealing with the superannuation interest until the “flag” has been lifted. The flag will be able to be lifted either by further agreement or by a court order should the parties be unable to subsequently agree”.
In relation to the flagging orders the memorandum provides:
176. As with superannuation agreements, in certain circumstances a court may consider it more appropriate to make a flagging order in relation to a superannuation interest, rather than a splitting order. Section 90MU of new Part VIIIB will provide for flagging orders, that can be made on a superannuation interest that is not prescribed to be an unflagged interest.
177.Subection 90MU(1) of new Part VIIIB will provide that a court may make a flagging order in relation to a superannuation interest, which is not an unflaggable interest, that directs the trustee not to make a splittable payment in respect of the interest without the leave of the court (paragraph 90MU(1)(a)).
178. In order to lift a flagging order, parties will need to know when a payment would become payable if it weren’t for the flagging order of the court. Therefore, paragraph 90MU(1)(b) of new Part VIIIB will provide that the flagging order will also require the trustee to notify the court of the next occasion with a splittable payment becomes payable in respect of the superannuation interest that is dealt with in the order. The court order will specify the period within which the trustee is required to provide such notice to the court.
179. As noted above, it is envisaged that a flagging agreement will be chosen by parties in circumstances where a condition of release (for example, retirement) is imminent. The reason for this is that while the actual value of the superannuation interest is not known at the time that the parties are entering into the agreement, its precise value will be known in the near future. Therefore, parties may wish to use a flagging agreement to “defer” a final decision about a superannuation interest until such time as the actual value of the superannuation interest is know, because the member has met a condition of release.
180. Similarly, when a court is called upon to make a property settlement it may be that the actual value of the superannuation interest is unknown, but will become known in the very near future. While the regulations will provide for a method of valuing superannuation interests, a court may consider it more appropriate to “defer” a final decision on the superannuation, and in the context of some or all of the property, until the actual value of the superannuation interest is known.
181. In such circumstances, a flagging order may be appropriate. Subsection 90MU(2) will provide that in deciding whether to make a flagging order, the court may take into account such matters as it considers relevant and, in particular, may take into account the likelihood that a splittable payment will soon become payable in respect of the superannuation interest.

What is the effect of a payment flag?
100. The practical effect of a payment flag is to “injunct” the trustee to ensure that no payments, pursuant to the superannuation interest, are made.
101. For small superannuation funds, it should be possible for the payment flag to operate as soon as it is served on the trustee. For larger superannuation funds, their administrative systems may mean that there is a delay between the service time and the time when the paperwork can be processed. For instance, if the papers are served on the trustee but the fund is managed by some other organisation, for example, by a fund administrator, it will be necessary for the trustee to forward the paperwork to that other organisation.
The Act at s90MN provides that a payment flag may be terminated by a Court.
On the reading of the section and the memoranda, it is clear that a flagging order can only be an interlocutory order. It is specifically designed to preserve the superannuation property to make it available for possible splitting order some time in the future.
Accordingly, I find that it is open for the Court to make a flagging order in respect of the husband’s superannuation interest under the Pensions Act, subject to the Court determining that it ought to exercise its discretion in that regard.
The Court’s discretion under s 90MU
The Court has discretion as to whether to make a flagging order. There is a general requirement for a court to take into account relevant matters and in particular there is a question as to whether a splittable payment will soon become payable in respect of the superannuation interest, the sub-section provides[6];
“(2) In deciding whether to make an order in accordance with this section, the court may take into account such matters as it considers relevant and, in particular, may take into account the likelihood that a splittable payment will soon[7] become payable in respect of the superannuation interest”.
[6] s90MU(2).
[7] My highlighting.
The husband does not have an absolute entitlement to a pension on his illness or infirmity, as such entitlement only arises after a certification from the Minister. The wife’s entitlement as a spouse, under s8 of the Pensions Act, may or may not arise if the husband dies depending upon the construction of the term “spouse”. The husband’s entitlements under the Pensions Act will not otherwise arise until the husband serves as a judge for approximately another nine years. As such a splittable payment will not soon become payable to the husband.
It was initially submitted by the husband that there is no prejudice to him if a flagging order is made. Counsel for the husband later submitted that the husband may suffer prejudice in that if he applies for a loan his ability to borrow money would be effected by the flagging order. I find that if there is any such prejudice it is not significant as the husband indicated that he was, at one stage, prepared to give an undertaking to the trustee of the Pensions scheme. Furthermore he would be obliged to disclose to any financial provider that his property and superannuation were the subject of proceedings under the Act.
The prejudice to the wife is her concern that if the husband becomes ill or infirm he could access his entitlements to the Pensions fund by way of certificate from the State Minister without her knowledge or consent. This must be seen in the factual background that there is no evidence that the husband has any illness or infirmity which would ground a request to the Minister for a certificate under s7 of the Pensions Act. The concern seems to be based upon the possibility that the husband may become ill or disabled and seek a certificate from the State Minister. It is an agreed fact between the parties these proceedings would be finally heard within a period of about twelve months to eighteen months from the date of this application.
A flagging order does not appear to provide the wife with any further protection in the event of the husband dying. A flagging order seems not to have any impact in terms of that eventuality. The proceedings have commenced and as such any protection available to the wife under s79(8) of the Act is in place. The prejudice that concerns her is her status as a “wife” in circumstances where the marriage no longer subsists and the definition of a spouse under the Pensions Act is as yet unclear. A flagging order would not cure that problem.
It was argued by the husband that the orders sought by the wife serve no purpose and interferes with the husband’s judicial independence. A flagging order by its nature could not interfere with a judge exercising his or her duties under a commission. If an order were made causing a delay to a judge’s retirement or resignation that may cause a judge some inconvenience but there was provided no evidence as to how such an order would interfere with this or any judge in the performance of his or her judicial duties. I reject the submission that the flagging orders and/or the particular orders sought under s114 of the Act would interfere with the husband’s independence in terms of his judicial commission.
Taking all the evidence into account and considering all the submissions by the parties I determine that a flagging order should not be made and I will dismiss that part of the wife’s application in a case.
The wife’s application for orders under s114 of the Act.
The wife seeks orders under s114 of the Act that the husband notify the wife 28 days prior to any resignation, retirement or election he may be proposing to take under the Pensions Act.
I infer that the parties are in high conflict in this litigation and one and/or other lack trust of the other.
There is no compelling evidence upon which to base findings needed to make an order restraining the husband from notifying the wife prior to his retirement to take a pension under the Pensions Act, as is not generally eligible for such a pension until the year 2015. There is no evidence that the husband proposes to retire, the evidence is that he intends to continue to work as a State Court Judge.
The only election the Judge can make under the Pensions Act to request a certificate from the Minister under s7 of the Act. I see no prejudice to the husband in requiring him to notify the wife of any application for a certificate made by him such a certificate. There is no harm to the husband, however, that is not the test.
The authors of Australian Family Law and Practice[8] observe;
[8] Malcolm D Broun QC, Anthony F Dickey QC and Stuart G Fowler, Australian Family Law and Practice, CCH Australia Ltd, Sydney.
[¶46-623] Limits on the power to grant interlocutory injunctions
The Full Court of the High Court has made it clear that as a general rule the Family Court has no greater power to grant an interlocutory injunction than it has to grant a permanent injunction. However, as the Family Court is a superior court it is entitled to determine jurisdictional facts; it accordingly has power to grant an interlocutory injunction to preserve the status quo until such time as it can decide whether the facts of the case are sufficient to justify the continuation of the injunction or a grant of a permanent injunction. See Re Ross-Jones ; Ex parte Green (1984) FLC ¶91-555, at pp 79,488, 79,494, and Re LSH ; Ex parte RTF (1987) FLC ¶91-843, at pp 76,354, 76,358, 76,361, 76,364.
In G and T (2004) FLC ¶93-176, O'Reilly J summarised the principles relevant to the court's exercise of discretion as follows:
``53. The purpose of interlocutory restraining orders in a case such as this is to preserve the status quo until the trial. In order to exercise its discretion the Court is required to find that there is a serious issue to be tried and that the balance of convenience supports the making of an order: Blueseas Investments Pty Ltd v Mitchell and McGillivray (1999) FLC ¶92-856 (FC) at par 56, citing Yunghanns v Yunghanns (1999) FLC ¶92-836 (FC) at par 109.
54. Plainly, it is also a requirement that the restraints sought be reasonably necessary in the sense that if the restraining orders sought are not made there would be a real risk of the defeat of the applicant's claimed interest: Waugh and Waugh (2000) FLC ¶93-052 at pars 32-44.''
In G and T, the wife ultimately sought an order under s 79A, to set aside consent orders on the ground of duress. Her Honour held that in the circumstances, the wife was required to meet the higher test of a prima facie case under s 79A (Bigg v Suzi (1998) FLC ¶92-799 at paras 4.7 and 4.9 applied).
[¶46-625] What is meant by ``just or convenient''?
Section 114(3) empowers a Court exercising jurisdiction under the Family Law Act to grant an injunction ``in any case in which it appears to the court to be just or convenient to do so'' (emphasis added). The expression ``just or convenient'' derives from sec 25(8) of the Supreme Court of Judicature Act, 1873 (Eng), which was subsequently re-enacted in England in sec 45 of the Supreme Court of Judicature (Consolidation) Act, 1925. For the terms of sec 25(8) of the English Act of 1873, see ¶46-620 above.
In the early English cases of Beddow v Beddow (1878) 9 Ch D 89, at p 93, and Day v Brownrigg (1878) 10 Ch D 294, at p 307, Jessel MR made it clear that the expression ``just or convenient'' in the context of the English Act of 1873 meant ``just as well as convenient''. In other words, the word ``or'' in this context is to be read as conjunctive, not disjunctive. See also Davis, RB and Davis, JM (1976) FLC ¶90-062, at p 75,308 and esp Borzak and Borzak (1979) FLC ¶90-688, at p 78,672.
The precise relationship between the factors of justice and convenience for the grant of an injunction under sec 114(3) remains unsettled. Compare the statements by Jessel MR in Beddow v Beddow, who said (loc cit) that in ascertaining what is just, the Court must have regard to what is convenient, with those by Wood J in Borzak and Borzak, who said (loc cit) that considerations of justice may override considerations of convenience.
For a more detailed consideration of the meaning of the expression ``just or convenient'', see 24 Halsbury's Laws of England 4th ed, p 519, para 919, referred to with approval by Hoare J in the Queensland case of Zimitat v Douglas (1979) Qd R 454 at p 457.
.40 Meaning of ``just or convenient''. ``By the Common Law Procedure Act this [injunctive] power would have been exercised at the trial as far as it was `just'. The only addition is that in the Judicature Act you have `just or convenient': not that that would be convenient which was unjust; but that in ascertaining what is `just' you must have regard to what is convenient.'' Per Jessel MR in Beddow v Beddow (1878) 9 Ch D 89, at p 93.
.42 ``Just or convenient'' means ``just as well as convenient''. ``It must be `just' as well as `convenient'.'' Per Jessel MR in Day v Brownrigg (1878) 10 Ch D 294, at p 307.
.44 Meaning of ``just or convenient''. ``[I]n so far as sec 114(3) refers to the making of orders which appear to be just or convenient, considerations of convenience are not to be taken into account to the exclusion of considerations as to what is just. Indeed, it would seem to me that in so far as the legislature has referred first to the requirement that the order be just. Or secondly, and in the alternative that it may be convenient, then considerations of what is just would if anything, override considerations of what is convenient. Obviously, having regard to the wide nature of the discretion conferred by sec 114(1) and (3), it would often be a fine line that existed between considerations of what was just and what was convenient, and in many cases the factors would overlap.'' Per Wood J in Borzak and Borzak (1979) FLC ¶90-688, at p 78,672.
In the facts and circumstances in this matter I am not satisfied that the interlocutory orders sought by the wife ought to be made. As such I will be dismissing her application in a case filed 13 July 2006.
An order was made by a Judicial Registrar on 27 July 2006 which provided, inter alia, that:
“3.Pending the hearing of the Form 2, the husband do notify the wife twenty eight days prior to:-
(a)his resignation as a Judge;
(b)his retirement;
(c)exercising any election under Judges’ Pensions Act as amended;
make an application to the Trustee for payment out of his interest in the Judges’ Pensions Scheme”.
That order will be vacated as and from the date of the Orders made pursuant to these reasons.
I make the following orders:-
UNTIL FURTHER ORDER
1.THAT interim order 3 made by Judicial Registrar Forbes on 27 July 2006 be vacated.
2.THAT the wife’s application for orders set out in paragraph 1 and 2 of the wife’s application in a case filed 13 July 2006 be dismissed.
3.THAT the question of costs is reserved.
4.THAT these proceedings be adjourned for mention before Justice Dawe on a date to be fixed for the purpose of listing this matter for hearing.
IT IS CERTIFIED
5.THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

I certify that the preceding 63 paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Benjamin.
………………………………….
Associate
Dated: 17 October 2006

[2006] FamCA 1046

17 October 2006

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