MYLES & TOLMAN
[2017] FamCA 157
•17 March 2017
FAMILY COURT OF AUSTRALIA
| MYLES & TOLMAN | [2017] FamCA 157 |
| FAMILY LAW – SUPERANNUATION – where parties’ property settlement took place in 1998 before a Registrar –whether the Court had power under the Family Law Act 1975 (Cth) to extend time to enable a review of the exercise of power by the Registrar – where the Court considered if an extension of time would afford justice between the parties – where an extension of time was granted – a splitting order was made |
| Family Law Act 1975 (Cth) ss 37A(9), 79A(1A), 90MT(4) Family Law (Superannuation) Regulations 2001 Family Law Rules 2004 (Cth) r 1.14(1), 18.02(4) |
Bassi & K D Salesforce Specialists Pty Ltd v Mass (1999) FLC 92-867
Burridge & Burridge (1980) FLC 90-902
Greetham & Greetham [2010] FamCA 246
Hackett & Hackett [2007] FamCA 1618
Harris & Harris 1993 FLC 92-378
In the Marriage of Tormsen (1993) FLC 92-392
In the Marriage of West & Green (1991) 16 Fam LR 881
Lehear & Lehear [2009] FamCA 645
McDonald & McDonald (1976) FLC 90-047
Molier & Van Wyk (1980) FLC 90-911
Wooley & Kingston [2007] FamCA 1509
| APPLICANT: | Ms Myles |
| RESPONDENT: | Mr Tolman |
| FILE NUMBER: | ADC | 2193 | of | 2007 |
| DATE DELIVERED: | 17 March 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 22 February 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McQuade |
| SOLICITOR FOR THE APPLICANT: | Diane Myers Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Turner |
| SOLICITOR FOR THE RESPONDENT: | Scales and Partners |
UPON NOTING THAT
A.Prior to the enactment of the Family Law Legislation Amendment (Superannuation) Act2001 (Cth), the parties finalised matters concerning matrimonial property by way of a Consent Order made by a Registrar of the Family Court of Australia dated 19 November 1998.
B.All of the terms of the Consent Order have been fulfilled other than the provisions relating to the respondent paying the applicant a portion of his superannuation entitlement and long service leave entitlement;
C.On 9 December 2016 the applicant instructed an actuary to undertake a Family Law Valuation of the respondent’s interest of the Public Sector Superannuation Scheme (PSS) member number … as at 14 November 2016 and to calculate a base amount of the Family Law Value in accordance with the formula as set out in 1(c) of the Consent Order;
D.The respondent is still employed at B Group but anticipates retiring in May of this year;
E.That following the provision of a draft Minute of Order to the trustees by letter dated 17 February 2017, the trustees have confirmed that they have been provided with procedural fairness and that if the orders are made in terms of the draft Minute of Order as seen by them they are able to comply with the obligations created by those orders.
IT IS ORDERED
That the time to the applicant to bring an application for a review of the exercise of power by a Registrar on 19 November 1998 be extended to 16 January 2016 and that the review be allowed.
That paragraphs 1 and 2 of the orders made by a Registrar on 19 November 1998 be set aside and in lieu thereof the following orders be made:-
A.Order in terms paragraphs 1(a), (b), (e), (f), (g), (h) (i), (j), (k), (l) and 2 of the orders made on 19 November 1998 NOTING that there has been compliance with these orders and all of the terms and conditions have been satisfied and fulfilled;
B.That the Court allocate as required by section 90MT(4) of the Family Law Act 1975 (Cth) (as amended) a base amount of FIVE HUNDRED AND FORTY THOUSAND DOLLARS ($540,000) to the applicant out of the respondents interest in the Public Sector Superannuation Scheme (PSS) member number ...;
C.In accordance with section 90MT(1A) of the Family Law Act 1975 (Cth) (“the Act”) whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of the respondent from his interest in the PSS Fund member number … the applicant is entitled to be paid by the trustee of the PSS the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of FIVE HUNDRED AND FORTY THOUSAND DOLLARS ($540,000) and there is a corresponding reduction in the entitlement the respondent would be entitled to receive but for these orders;
D.That paragraphs 1(b) and (c) have effect from the operative time;
E.That the operative time for these orders is the fourth business day after the date of service of a copy of these sealed final orders on the Trustee;
F.That the Trustees of PSS having been afforded procedural fairness in relation to the making of these orders, these orders shall bind the Trustees of PSS;
G.That the Trustees of PSS shall do all acts and things and sign all such documents as may be necessary so that in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the Trustee can make payment to the applicant with 1(b) and 1 (c) of these orders;
H.That the respondent forthwith cause a copy of these orders to be served upon the Trustees for the respondent’s PSS Fund and to request that the Trustee do note the orders and act in relation to any payment in accordance with the respondent’s obligations pursuant to these orders;
I.That the respondent by himself, his servants and agents be and are hereby restrained from doing any act or thing which would prevent the applicant or her legal personal representative from receiving the benefits of the funds to which she is entitled pursuant to these orders;
J.That upon the respondent’s resignation or retirement from his employment with B Group (BG) the respondent shall forthwith pay or cause to be paid to the applicant a proportion of his long service leave entitlements and any other accrued benefits due to him as a result of his employment with BG in accordance with the following formula:-
(i)A x B ÷ 2C where:-
(a)A = the lump sum benefit net of taxation payable to the respondent;
(b)B = period of cohabitation between the parties;
(c)C = the respondent’s years of service.
K.If either the applicant or the respondent shall refuse or neglect to execute any document necessary to give effect to the terms hereof within seven (7) days after the same shall have been tendered to him or her for that purpose THEN in such case:-
(i)a Registrar or Deputy Registrar of this Honourable Court upon proof by affidavit of such refusal or neglect is hereby appointed to execute any such document on behalf of either party hereto and if it is his or her opinion it shall be necessary to so do to settle the same and do all such other acts and things and execute all such other documents as shall be necessary to give full force and effect hereto and shall execute and do the same accordingly;
(ii)the party in default shall pay the other parties costs as agreed or taxed;
L.This order shall operate as a complete bar to any further or future claim of a financial nature as between the parties arising out of the marriage and/or under the Family Law Act or its successor or otherwise.
That all extant applications do otherwise be dismissed.
Liberty to either party to apply as to consequential orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Myles & Tolman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 2193 of 2007
| Ms Myles |
Applicant
And
| Mr Tolman |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 19 November 1998 a Registrar of the Family Court of Australia made orders by consent which resolved all claims that either party may have against the other for property settlement. On 15 February 2016 Ms Myles (“the wife”) filed an Initiating Application seeking orders that there be an extension of time to seek a review of the exercise of the power of a Registrar in making the orders on 19 November 1998.
If the application for extension of time is successful, then the wife seeks that the order of the Registrar on 19 November 1998 be set aside and in lieu thereof orders made that would provide for the allocation to the wife of a base amount as required by s 90MT(4) of the Family Law Act 1975 (Cth) (“the Act”). In effect, the wife seeks to put in place a superannuation splitting order in respect of the husband’s interest in the Public Sector Superannuation Scheme (PSS) member number ...
On 5 September 2016 Mr Tolman (“the husband”) filed a Response seeking to adjourn the proceedings and then following compliance with orders made on 19 November 1998 to dismiss the applicant’s application.
The wife’s Initiating Application is supported by the following documents:-
(1)Affidavit of Ms Myles filed 5 February 2016;
(2)Financial Statement filed 15 February 2016;
(3)Affidavit of Ms C filed 16 February 2017;
(4)Affidavit of Ms C filed 17 February 2017.
The wife does not seek orders pursuant to s 79A of the Act, although it is suggested an aspect of the 1998 order is not now able to be given effect nor enforced. There is no suggestion that the husband is anything other than entirely willing to comply with the terms and conditions of the 1998 order.
BACKGROUND
The wife was born in 1944 and is 73 years of age. The husband was born in 1945 and is 71 years of age. The wife is a retired and now lives in the United Kingdom. The husband is currently employed but has given notice that he intends to retire in May 2017.
The parties married in 1971 and separated on 20 September 1997. A divorce order was granted on 12 June 2007.
On 19 November 1998 a Registrar of the Family Court of Australia made orders by consent in respect of settlement of property and spousal maintenance. The orders were relatively straightforward, for the sale of the former matrimonial home to take place and for the net balance remaining following the payment out of rates and taxes, agent’s commission, other liabilities and the existing mortgage, the payment of the sum of $6,424.33 to the wife.
The more significant consideration of the parties was the manner in which they agreed to deal with the husband’s superannuation entitlement from his employment with BG that would vest to him upon his resignation or retirement.
The paragraphs of the order made 19 November 1998 (“1998 order”) that are relevant to the current application are as follows:-
1(c)Upon the husband’s resignation or retirement from his employment with BG he is to forthwith pay or cause to be paid to the wife the sum calculated in accordance with the following formula –
(i)A x B ÷ by 2C where:-
(a)A = the lump aggregate value of the lump sum net of taxation and inclusive of all investment return accruals at the date the fund vests or the husband retires or resigns, whichever first occurs, payable to the husband –
1. If he resigns before the age of 55 – the sum he would receive;
2. If he resigns after the age of 55 – the sum he would receive if he commuted the maximum possible of his pension entitlement with Public Sector Superannuation Scheme (PSS) including but without limiting the generality thereof of any preserved benefit to him;
B. B = period of cohabitation between the parties;
C. C = the husband’s years of service.
(ii)In order to secure the performance by the husband of his obligation pursuant to paragraph 1(c)(i) herein the husband is hereby restrained from electing to convert any benefits due to him under the said fund to a CPI indexed pension and from dealing with or disposing of any entitlements he has under the said fund other than in accordance with the terms of this order;
(iii)A sealed copy of this order be delivered to the trustees of the said PSS Fund together with an irrevocable authority signed by the husband directing the trustees of the said fund to comply with the terms of the order herein and further appointing the wife as an eligible spouse within the definition of the said fund;
(iv)In the event that legislation is passed with respect to the accessing of superannuation entitlements by the spouse of a superannuant before the entitlements vest then and in that case the husband undertakes to use all reasonable endeavours to facilitate the wife accessing her proportion of the husband’s entitlements in the said fund prior to the vesting of those entitlements upon the husband’s retirement, resignation or any other circumstance.
1(d) That upon the husband’s resignation or retirement from his said employment he is to forthwith pay or cause to be paid to the wife a proportion of his long service leave entitlements and any other accrued benefits due to him as a result of his employment in accordance with the following formula:-
(i)A x B ÷ 2C where:-
1. A = the lump sum benefits net of taxation payable to the husband;
2. B = period of cohabitation between the parties;
3. C = husband’s years of service.
The 1998 order was not made in contemplation of any future legislation that affected the treatment of superannuation. It is clear that the parties intended the orders to be final.
Paragraphs 1 (c) and to a lesser extent 1(d) of the 1998 order were not crafted in consideration of the Family Law Legislation Amendment (Superannuation) Act2001 (Cth) which came into effect on 28 December 2002. Prior to that Act, superannuation entitlements were not considered property and the section 79 power did not extend to altering interests in unvested superannuation (In the Marriage of West & Green (1991) 16 Fam LR 881, Hackett & Hackett [2007] FamCA 1618).
It is conceded that all other orders except the provisions in respect of the husband’s superannuation and long service leave entitlements have been the subject of compliance and neither party seeks to amend or adjust those provisions. There are no outstanding obligations.
Paragraph 1(c)(iii) of the 1998 order provides for a sealed copy of the order to be delivered to the trustees of the PSS Fund with an irrevocable authority signed by the husband directing the trustees comply with the terms of the order. It was also ordered that the husband request that the trustees appoint the wife as “an eligible spouse within the definition of the said Fund”.
A copy of the section 79 order together with the relevant authority as referred to in the 1998 order was forwarded to the trustees on 18 December 1998.
The response of the trustees in June 2003 confirmed that the effect of the order was to be noted but that:-
The Court Order itself is not sufficient authority for this office to deduct an amount from the [husband’s] benefit and paid to the wife… Order 1(c)(iii) of the 1998 Court Orders is ineffective as the definition of “eligible spouse” is determined under the Scheme Legislation and cannot be overridden by Court Order or a nomination made by the member.
There then followed significant correspondence between the parties and their solicitors seeking advice from the husband as to his likely retirement or resignation date and attempting to confirm with the trustees the extent to which their involvement might give the wife some comfort that her entitlement pursuant to the orders would be received by her in circumstances where the husband might decide to be recalcitrant.
It appears that the parties were not initially able to agree how the order would be reflected in terms of a payment to the wife. The calculations were complicated. The husband was a member of a defined benefit fund and the intention of the parties was that the wife was to receive a lump sum payment.
The wife employed an actuary to undertake the complex calculations in terms of the amount payable and the extent to which taxation would be a relevant factor.
The reference in the 1998 order to the wife being appointed as an “eligible spouse” was clearly an attempt to impose a method of security for the wife in the event of the husband’s death.
Whilst it was accepted by the wife that notwithstanding the terms of the order, the trustees were bound by the relevant superannuation legislation, that aspect of the order was not necessarily fatal to the integrity of the order as originally agreed.
By affidavit filed 5 September 2016, the husband affirmed his intention to comply with the 1998 order, to indicate that he intends to retire in May 2017 and whilst not “an expert in superannuation” was prepared to accept the general thrust of the calculations as obtained by the wife.
The wife has forwarded to the trustees of PSS a draft Minute of Order seeking an indication from the trustees as to whether they would be prepared to be bound by the order if so made.
It must be remembered that at the time the proposed orders were sent to the trustees there was no consent by the husband to there being a joint approach to the Court seeking that revised orders be made by consent.
The wife’s proposed orders appear as annexure “ET2” to the affidavit of Ms C filed 17 February 2017 and the consent of the trustees (subject to certain amendments being made) appears at “ET3” to the said affidavit.
At the commencement of the proceedings the wife was represented by counsel but was not herself present. The husband was represented by his solicitor and was present.
After giving the husband’s solicitor an opportunity to confirm his instructions, I was told that the husband now gave his consent (subject to the determination of the Court) to orders being made in terms of a draft Minute of Order that had been forwarded to the trustees for their consideration.
If successful in her application, the proposed orders provided that there be a base amount of $540,000 payable to the applicant out of the respondent’s interest in PSS.
DISCUSSION
The provisions of the Family Law Legislation Amendment (Superannuation) Act (Cth) 2001 provided for separating married partners to split and flat superannuation entitlement as and from 28 December 2002.
The amending legislation has no retrospective effect.
Sections 5(2), 5(3) and 5(4) of the amending legislation state:-
5(2)Subject to subsections (3) and (4), the superannuation amendments do not apply to a marriage if a section 79 order, or a section 78 agreement, is enforced in relation to the marriage at the start-up time;
5(3)If a section 79 order that is in force at the start-up time is later set aside under paragraph 79A(1)(a),(b),(c) or (d) of the Family Law Act, then the superannuation amendments apply to the marriage from the time the order is set aside.
Where a Court has made an order in relation to the property of the parties, the Court has no jurisdiction and no power to make an order splitting or flagging any superannuation interest the parties may have.
The explanatory memorandum states:-
The policy intention is that the superannuation amendments will not apply if a property settlement, either by a Court approved agreement, under section 87 of the Family Law Act or a Court Order, under section 79 of the Family Law Act, has been finally concluded prior to the commencement of the superannuation amendments.
Subsection 4 of the amending legislation states:-
Section 79 orders means “an order (other than an interim order) made under section 79 of the Family Law Act”.
Orders made pursuant to s 79A(1A) of the Act cannot be used to enable a subsequent splitting or flagging order to be made.
The wife does not seek an order pursuant to s 79A(1) of the Act. It is not suggested that there has been a miscarriage of justice. I do not consider that the error purporting to require the trustees to record the wife as the “eligible spouse” of the husband constitutes a miscarriage of justice.
The 1998 order is able to be carried out irrespective of that error or omission.
The proposed order was drafted to enable the setting aside of paragraph 1(c) and 1(d) of the 1998 order pursuant to the consent provisions of s 79A(1A) of the Act.
Counsel acknowledged that s 79A(1A) could not be a source of jurisdiction.
Counsel amended the proposed order to more closely reflect the tenor of the orders as sought in the initiating application namely, to reflect an extension of time to file an application seeking a review of the exercise of power by a Registrar on 19 November 1998.
It is not submitted by the wife that the order was not a final order but rather an interim order. I raised with counsel whether this was a possible consideration. If so, it could be argued that the finalisation of proceedings under s 79 had not yet concluded and therefore consideration could be given to an order pursuant to s 90MT(1) of the Act not by way of consideration of consequential or machinery relief, but rather as part of the final orders.
In Bassi & K D Salesforce Specialists Pty Ltd v Mass (1999) FLC 92-867 at 86, 265 the Full Court said:-
55.The Court’s power, under section 79(6), to make property orders where it makes an order under section 79(5) adjourning proceedings to await the occurrence of a significant financial event such as the receipt of superannuation, is not confined to making “interim” orders. By that subsection it may make “such interim orders or such other order or orders (if any) as it considers appropriate with respect to any of the property of the parties to the marriage or either of them” (emphasis added).
Whilst the Full Court in Harris & Harris [1993] FamCA 49: 1993 FLC 92-378 at 79, 929 considered it unnecessary to draw the distinction which Nygh J drew between “interim” and “partial” orders in Burridge & Burridge (1980) FLC 90-902, it did not decide that there is no such distinction, or that it is inappropriate to draw it in a proper case.
It therefore could be argued that there is a distinction between an interim property order, a final order and perhaps even a partial property order.
It could not be said from a careful consideration of the 1998 order that the parties contemplated a review or a further consideration of the provisions relating to the husband’s superannuation entitlement should there be any subsequent legislation which might touch upon the issue. The orders are purported to be in full and final settlement of all outstanding claims of the parties, makes provision in respect of spousal maintenance for a limited period and it is acknowledged by the wife that whilst she would prefer the better certainty of her entitlement arising out of the husband’s superannuation interest to be the subject of a superannuation splitting order, nonetheless the 1998 order is able to be complied with and the husband has indicated the preparedness to be bound by its terms and conditions.
Accordingly, the wife does not rely upon relief pursuant to s 79A, nor does she argue that the orders are “interim” orders.
Whilst it was not the subject of submission, I have given consideration to whether the decision of Wooley & Kingston [2007] FamCA 1509 might stand as authority for the proposition that the order sought are machinery provisions and therefore merely consequential orders required in order for the substantive orders to be implemented.
Brown J varied the orders in Wooley (supra) on the basis that the variation sought would have no effect on the substantive property rights of the parties, it would cause no prejudice to the husband and that it gave effect to the intention of the orders. In doing so Her Honour relied upon the decision of McDonald & McDonald (1976) FLC 90-047 and Molier & Van Wyk (1980) FLC 90-911.
A careful reading of the circumstances in Wooley (supra) would suggest that Her Honour placed weight on the apparent recalcitrance of the husband. The wife had no knowledge of his whereabouts and it could not be assumed that the husband was necessarily cognisant of his obligations pursuant to the order or that he would comply with them in the absence of any response to the contrary.
The presentation of the husband in the present case is significantly different. There is no suggestion that he has been anything other than entirely cooperative and he has affirmed his intention to be bound by the orders and to comply with them.
Whilst the wife might gain some comfort from the better certainty that arises from a superannuation splitting order in her favour, that is not a relevant consideration in the present case.
Given that the 1998 order was made by a Registrar, the focus is whether I should extend time to enable a review of the exercise of power by the Registrar. If the orders had been made by a Judge that option would not now be a consideration.
REVIEW OF EXERCISE OF REGISTRAR’S POWERS
Section 37A(9) of the Act provides:-
A party to proceedings in which a Registrar has exercised any of the powers of the Court pursuant to a delegation under subsection (1) may, within the time prescribed by, or within such further time as is allowed in accordance with, applicable Rules of Court made by the Judges or a majority of them for the purposes of this subsection, apply to the Court to review that exercise of power.
Rule 18.08(2) of the Family Law Rules 2004 (Cth) (“the Rules”) provides:-
A party may apply for a review of any other order or decision made under these Rules by a Registrar or Deputy Registrar by filing an Application in a Case and a copy of the order or decision appealed from in the filing registry within 28 days after the order or decision is made.
Rule 1.14(1) of the Rules provides:-
A party may apply to the court to…extend a time that is fixed under these Rules or by a procedural order. In the Marriage of Tormsen (1993) FLC 92-392 the Full Court said at 80,017:-
The fundamental issue in application for extension of periods of time prescribed by rules of Court is whether this will enable the Court to do justice between the parties…[and that a] failure to explain the delay adequately can certainly lead to a conclusion that justice demands that the application be dismissed.
It was also held that:-
…in appropriate cases the interests of justice may outweigh the absence of an adequate explanation.
In Lehear & Lehear [2009] FamCA 645 Cronin J said:-
[23]…if it is suggested that by extending the time and exercising the power under rule 18.10 a Court is now invested with power to make orders pursuant to Pt VIIB of the Family Law Act, I reject that. That is because the parties are not seeking to have the Court exercise its power generally under section 79 but rather, only the discreet issue in relation to the superannuation because that power was not available in 2001. The parties themselves indicate that they do not want the Court to examine any of the financial circumstances outside of making the orders relating to superannuation. That flies in the face of the Court making an order which is just and equitable under section 79.
[24] In addition, I have serious doubts about the appropriateness as I have already indicated, of endeavouring to circumvent the very clear legislation of 2001.
In Greetham & Greetham [2010] FamCA 246 Strickland J considered the decision in Lehear (supra) and said:-
[70]The reasoning of Cronin J is quite persuasive. His Honour is arguably correct that allowing an extension of time for a party to seek the review of a Registrar’s decision, particularly by consent, is contrary to the policy intention of the superannuation amendments and seems to be contrary to 5(2) of the amending Act. However, in my opinion, if it was the intention of Parliament to exclude the option of review of a Registrar’s decision, which would otherwise be open to the parties subject to an extension of time being granted, or to exclude the application or the amending legislation to the hearing of the review, the legislature should have made this intention clear and expressly said so.
In considering whether to extend time Strickland J said at paragraph 72:-
In exercising my discretion as to the extension of time, as I have averted to, the fundamental issue is whether an extension of time is necessary to enable this Court to do justice between the parties. In that context, it is usually but not always necessary to explain any delay in bringing the application. Here the delay is substantial but it is understandable. The wife was operating under the belief that she would be able to receive her entitlement under the orders when the husband turned 50 years of age in 2009. It was only when she found out otherwise that the imperative to do something about the order, if possible, arose. Thus I consider that the delay has been satisfactorily explained.
The relevant considerations in this case are finely balanced. It could not be said that there is now uncertainty as to when the wife was likely to receive her entitlement. The husband has affirmed his intention to resign or retire in May 2017. The husband does not resile from the actuarial calculations in respect of the wife’s entitlement and it appears now uncontroversial that she is to receive the sum of $540,000.
The wife however resides in the United Kingdom. It is difficult for her to attend easily to the mechanics of resolving matters with the husband and ensuring that in the event of any default she is able to take all steps that may be necessary to ensure she receives her entitlement.
The husband is not prejudiced by the wife’s application. He has acknowledged his obligation under the 1998 order and if I accede to the wife’s application it is with his consent.
The wife considers that in making the proposed orders she will have peace of mind and certainty of outcome.
It seems in the circumstances of this case that it would be in the interests of justice to make orders in terms of the broad thrust of the application of the wife.
In doing so I am mindful of the issues raised by Cronin J in Lehear. It is conceptually difficult to conceive of a review in respect of a proportion of the final orders, which in the absence of the complete picture, would make the consideration as to whether the orders that are sought, in all the circumstances, be just and equitable may well be compromised.
It is a relevant consideration that the orders are to be made by consent and whilst that does not act as a “rubber stamp”, considerable weight can be given to the consent of the parties.
Accordingly, I propose to make orders broadly in terms of the Minute of Order but to set aside the entirety of the order made in 1998 with a notation that confirms there has been compliance with the terms and conditions of the 1998 order, save and except as to superannuation.
I certify that the preceding sixty eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 17 March 2017.
Associate:
Date: 17 March 2017
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