Turner and Turner and Anor

[2011] FamCA 562

FAMILY COURT OF AUSTRALIA

TURNER & TURNER & ANOR [2011] FamCA 562

FAMILY LAW – PROCEDURE

APPLICANT: Ms M Turner

1st RESPONDENT: Ms B As Personal Legal Representative For Mr S Turner            

2nd RESPONDENT: Ms C Turner As Personal Legal Representative For Mr S Turner            

FILE NUMBER: MLC 2045 of 2009

DATE DELIVERED: 8 June 2011

PLACE DELIVERED: Melbourne

PLACE HEARD:

JUDGMENT OF: Cronin J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE 1ST RESPONDENT:

SOLICITOR FOR THE 1ST RESPONDENT:

COUNSEL FOR THE 2ND RESPONDENT:

SOLICITOR FOR THE 2ND RESPONDENT:

Orders

In the matter of Turner, I will make the following orders which the Court will engross:

1. that the wife have leave to file an amended application seeking final orders;

2. that the application is to substitute for the legal personal representatives of the husband pursuant to rule 6.15;

3. that paragraph 12 of the orders made on 22 July 2004 is forthwith discharged;

4. that the wife be at liberty to serve a copy of this order on the D Super;

5. that otherwise all outstanding applications are dismissed;

6. there will be a notation that there is now no restriction on the D Super carrying out the superannuation split ordered on 22 July 2004.

IT IS NOTED that publication of this judgment under the pseudonym Turner & Turner is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 2045 of 2009

Ms M Turner

Applicant

And

Ms B As Personal Legal Representative For Mr S Turner And Ms C Turner As Personal Legal Representative For Mr S Turner

Respondent

REASONS FOR JUDGMENT

1. On 22 July 2004 final orders were made between Mr and Ms Turner.  In effect, those orders were final property orders and they included a splitting order relating to the husband’s interest in the D Super.  For reasons that mystify everybody, paragraph 12 of the orders, which I note were drawn by the parties, imposed what was euphemistically called a flagging order, which in reality was an injunction precluding the trustee from effectively carrying out what it was otherwise ordered to do.  That order has remained dormant since 2004.  Recently Mr Turner died and his legal personal representatives, for the purposes of rule 6.15 of the Family Law Rules, his daughters – I have this morning seen a copy of the will and they are not only the named executors and trustees of his estate but also the sole beneficiaries of the estate.  It is quite clear that the trustee of the D Super cannot pay out the entitlement that Ms Turner has under the 2004 splitting orders because of the injunction in place.  To the extent that the injunction was there under some power in the first place, it needs to be discharged and the matter was adjourned from 2 June to enable the necessary application to be made to carry that out. 

2. This morning I have a copy of a letter signed by one of the executors authorising the other executor to sign any legal documents on her behalf, and I have a minute of the consent orders signed by the other executor on behalf of both legal personal representatives agreeing to discharge the offending paragraph in the orders of 22 July.  It goes without saying that the trustee of the D Super needs to be notified of the making of these orders and I propose to put a notation on the order making it abundantly clear that there is now no reason why the splitting order cannot be implemented.  Whilst I have a minute of the consent orders, I propose to vary that slightly to ensure that there is no further problem and the matter can otherwise rest forever. 

ORDERS DELIVERED

I certify that the preceding two (2) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 June 2011.

Associate: 

Date: