Pera & Pera

[2008] FamCAFC 87

FAMILY COURT OF AUSTRALIA

PERA & PERA [2008] FamCAFC 87

FAMILY LAW - APPEAL – CONSENT ORDERS – CONSEQUENTIAL ORDERS - JURISDICTION - Where parties consented to orders – Where parties subsequently in dispute about the interpretation and implementation of the orders – Whether the trial Judge had jurisdiction to make further orders – Whether it is necessary for the trustee of a superannuation fund to become a party to the proceedings when orders are made in resect of assets of self managed superannuation fund – Where no superannuation splitting order was made or sought – Where trustee was not affected by the original consent orders or the consequential orders - The trustee of the superannuation fund did not need to be joined as a party – Where appellant asserts superannuation fund issues should have been instituted by civil action by trustee seeking a declaration and transfer of ownership of property – Proceedings concerning assets of the superannuation fund not required to be instituted as civil proceedings in a State court - Whether a superannuation fund is “property” for the purpose of s 4(1) and capable of enforcement under s 105 of the Family Law Act 1975 (Cth) –Discussion of Coghlan & Coghlan (2005) FLC 93-220 and Hickey & Hickey (2003) FLC 93-143 – Where the parties intended by implication the superannuation fund be treated as property in their consent orders – Trial Judge had jurisdiction to make orders.

FAMILY LAW - APPEAL – CONSENT ORDERS – CONSEQUENTIAL ORDERS – Where assertion the husband’s application did not seek the orders subsequently made – Where wife’s response put the issues before the Court – Where no procedural unfairness to the wife – No merit in this challenge.

FAMILY LAW - APPEAL – MACHINERY AND SUBSTANTIVE ORDERS – Whether orders made by trial Judge were machinery or substantive orders – Discussion of limitations on the Court’s power to vary final orders – Where trial Judge was aware he was functus officio – Trial Judge’s orders were consequential orders to ensure the husband obtained the assets belonging to the superannuation fund – Whether trial Judge erred in failing to make orders for superannuation assets to be sold to the wife or declared to be her property – Where a sale order could not be a machinery order - Where lack of evidence before the trial Judge about beneficial ownership of shares held by wife and asserted to be property of superannuation fund - Where trial Judge refused to make consequential orders about shares – No error by trial Judge

FAMILY LAW - APPEAL – PROCEDURAL FAIRNESS - Whether error by trial Judge hearing application “on the papers” – Where trial Judge had heard four days of the parties’ defended property dispute before consent orders were sought – Where the parties’ applications later before the trial Judge were applications for procedural orders to give effect to those consent orders – Whether wife should have been allowed to cross-examine husband - Lack of practical utility…