PAJ & GMJ - [2003] FamCA 751

[2003] FamCA 751

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

AT DANDENONG

No. DGF 3604 of 2001

IN THE MARRIAGE OF:

PAJ

(Husband)
and

GMJ

(Wife)

EX TEMPORE JUDGMENT DELIVERED BY

THE HONOURABLE JUSTICE YOUNG

Date of Hearing: 26 June 2003
Date of Judgment: 26 June 2003

Appearances: Ms Ristevski, solicitor appeared for the Applicant Husband
No appearance by the Respondent Wife

FACTS

In this matter Ms Ristevski, solicitor, appears for the husband. There was no appearance by or on behalf of the wife. The wife was called out of court and did not appear. I am satisfied from the extensive affidavits of attempted service that have been filed in the children’s proceedings that the wife has either evaded service or not interested and involved herself in any of the matters before this Court.
The wife was previously represented by a solicitor but that solicitor’s office has subsequently filed a Notice of Discontinuing to act for the wife.
On 15 July 2002 consent orders were presented to the Family Court Australia at Dandenong purporting to resolve, on an interim basis, questions of settlement of property as between the husband and wife.
The former matrimonial home in the State of Victoria had previously been sold and the moneys were then held in trust by solicitors for the parties.
The husband had certain superannuation entitlements arising from his previous employment. The wife had modest superannuation entitlements, of approximately $1,400.00 with HESTA.
There are two children of the marriage:
¨ K.J.J. born in November 1991; and
¨ M.V.J. born in March 1998.
There were final children’s orders agreed whereby the children resided with the husband and were to enjoy contact with the wife. Unfortunately the wife does not currently exercise contact with the children and has not seen them, face to face, for approximately twelve months.
An order was made pursuant to section 79(5) of the Family Law Act 1975 adjourning the further hearing of the wife’s application for settlement of property filed 4 December 2001 and the husband’s response to that application filed 19 December 2001 to a Trial Notice List for listing on or after 1 January 2003 “or such other date upon the commencement of the Family Law Legislation Amendment (Superannuation) Act 2001”. This was referred to in the order as the “Final Hearing Date”.
Unfortunately the manner in which the property assets and financial resources of the parties were dealt with in those orders dated 15 July 2002 was both inaccurate and somewhat confusing.

THE ORDERS 15 JULY 2002

The orders are headed “FINAL PROPERTY ORDERS”. The solicitor who appeared for the husband this day argued that the heading was misleading and, in itself, inaccurate.
The orders thereafter provided for the division, equally between the parties, of the net proceeds of sale of the home.
The orders further provided for each of the parties to retain furniture, personal possessions and chattels with the husband retaining the contents of the former matrimonial home to the benefit of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: PAJ & GMJ [2003] FamCA 751
Case: [2003] FamCA 751
Decision Date: 26 June 2003

CaseChat Overview and Summary

This matter came before the Family Court of Australia concerning property settlement disputes between the husband applicant and the respondent wife. The wife, who had previously been represented by a solicitor, did not appear at the hearing, despite attempts at service and prior engagement with the court process. The dispute centred on the interpretation and effect of consent orders made on 15 July 2002, which purported to resolve property matters, including the division of proceeds from the sale of the former matrimonial home and the parties' respective superannuation entitlements.

The primary legal issue before the court was to determine whether the consent orders of 15 July 2002 were intended to be interim or final in nature, particularly in light of the subsequent commencement of the Family Law Legislation Amendment (Superannuation) Act 2001. This determination was crucial because the superannuation amendments, which came into effect on 28 December 2002, do not apply to marriage property settlements finalised by court order prior to that date. The court was required to interpret the conflicting provisions within the consent orders and their accompanying notations, which described certain property divisions as interim while simultaneously stating they finalised real and personal property matters, and addressed superannuation in a manner that suggested future resolution.

Justice Young found the consent orders of 15 July 2002 to be poorly drafted, confusing, and misleading. The court analysed the provisions of section 79 of the Family Law Act 1975, including subsections (5), (6), and (7), which permit the adjournment of proceedings and the making of interim orders when a significant change in financial circumstances is anticipated, such as the receipt of superannuation. The court noted that the superannuation amendments do not apply if a section 79 order is in force at the commencement time of the amendments, unless that order is later set aside. Considering the conflicting notations and the general principles for making interim or partial property orders, the court concluded that the orders of 15 July 2002 were intended to be interim, specifically adjourning the final determination of superannuation matters pending the commencement of the new legislation.

Consequently, the court ordered that the superannuation amendments would apply to the property settlement between the parties. The matter was adjourned to a date to be fixed for the purpose of making further orders in relation to the division of superannuation entitlements in accordance with the Family Law Legislation Amendment (Superannuation) Act 2001.

Orders