RBH & JIH

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.