RBH & JIH - [2005] FamCA 226

[2005] FamCA 226

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

AT MELBOURNE

MLF 1155 of 2000

IN THE MARRIAGE OF:

RBH

(Husband)
and

JIH

(Wife)

EX TEMPORE JUDGMENT DELIVERED BY

THE HONOURABLE JUSTICE YOUNG

Date of Hearing: 23 March 2005
Date of Judgment: 23 March 2005

Appearances: Mr McIntosh, solicitor for the applicant husband
Mr Robinson, solicitor for the respondent wife

In the matter of H, file 1155 of 2000, the parties are before the court today in agreement and to seek a variation of or setting aside of the existing orders in relation to settlement of property. The primary issue relates to superannuation. What has occurred in this case is that the trustee of the husband's superannuation fund, the Emergency Services Superannuation Fund ("ESSS"), has declined to implement orders made by consent of this court.
Mr McIntosh, solicitor, appears for the husband. Mr Robinson, solicitor, appears for the wife.
I propose to set out a brief background to the factual matters in issue.
The parties negotiated a settlement of property, including superannuation, and signed minutes of orders on 23 December 1999. Those orders were subsequently presented to the court, in chambers, for an order to be made by a Deputy Registrar pursuant to Order 14 (as it then was) of the Family Law Rules. Deputy Registrar Boers on 2 February 2000 made those orders.
The solicitors who were then acting for the parties had filed an application for orders to be made by consent on 12 January 2000 and at that time had provided an agreed statement of facts which had been prepared by the solicitor for the husband. That document disclosed the value of the assets of the parties, which primarily were a home subject to a Commonwealth Bank mortgage and the husband's superannuation entitlements. Pursuant to the minutes of order what the parties agreed was that the wife would take a transfer of the home subject to its mortgage debt, that there would be a distribution of chattels and other personal possessions, and, as is provided for in paragraph 6 of the order, the husband would retain his superannuation entitlements, subject to a payment of $80,000 to the wife, together with interest calculated thereon from 1 September 1999.
It is important to reflect upon paragraph 6 of those orders as sought by the parties and as made by the court on 2 February 2000. It reads as follows:
“That in the event that legislation is introduced and that the Emergency Services Superannuation Fund managers consent, there will be no monetary penalty, the parties by way of income tax or generally, the husband will in the event that he is able so to do, sign all documents necessary to assign/transfer to the wife from his superannuation fund the sum of $80,000 ("the said sum"), together with any interest accrued thereon as gazetted annually, calculated from 1 September 1999, calculated annually provided that in the event that it is not possible to assign/transfer the said sum to the…

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.

Continue reading RBH & JIH

Details

AGLC: RBH & JIH [2005] FamCA 226
Case: [2005] FamCA 226
Decision Date: 23 March 2005

CaseChat Overview and Summary

The parties, husband and wife, sought to vary or set aside existing property settlement orders made by consent on 2 February 2000 by a Deputy Registrar of the Family Court of Australia. The central dispute concerned the implementation of paragraph 6 of those orders, which dealt with the wife's entitlement to a portion of the husband's superannuation. The trustee of the husband's superannuation fund, the Emergency Services Superannuation Fund (ESSS), had declined to implement the orders due to difficulties in interpretation and a lack of jurisdiction.

The court was required to determine whether it had the power to vary or set aside the existing orders, particularly paragraph 6, given the superannuation legislation in effect and the nature of the original orders. Specifically, the court had to consider whether the grounds of impracticability under section 79A(1)(b) of the *Family Law Act 1975* (Cth) were met, or if there had been a miscarriage of justice under section 79A(1)(a). The court also considered its jurisdiction to review the Deputy Registrar's decision and whether an extension of time was warranted.

Justice Young found that the original orders were not impracticable to perform, as the difficulties arose from the parties' solicitors attempting to pre-empt future superannuation legislation rather than unforeseen circumstances. He also determined that the facts did not conclusively establish a miscarriage of justice. However, the court granted an extension of time to review the Deputy Registrar's decision, finding that the original orders, particularly paragraph 6, were effectively incomplete and that the parties were in a "no-man's land" regarding their property settlement. The court exercised its power of review, treating the application as an original hearing, and set aside paragraph 6 of the 2000 orders.

The court ordered that paragraph 6 of the orders made on 2 February 2000 be set aside and substituted with new consent orders. These new orders stipulated that a base amount of $100,000 be allocated to the wife from the husband's interest in the ESSS Fund, with specific provisions for payment and transfer to the wife's nominated superannuation fund, and that the husband would bear all associated taxes and charges. The court explicitly rejected the submission that paragraph 6 of the original orders was interim in nature.

Orders