v and A

FEDERAL MAGISTRATES COURT OF AUSTRALIA

V & A

[2001] FMCAfam 231

PROPERTY SETTLEMENT – ‘Special’ contributions; Superannuation – whether application can be adjourned until legislation comes into operation – Interim Orders – Necessity to ensure orders are interim if an adjournment is granted – Family Law Act (1975) Section 79(5); Family Law Amendment (Superannuation) Act (2000); Family Law Superannuation Regulations (2001); JEL & DDF (2000) FamCA1353 referred to Van Essen & Van Essen (2000) FLC 93-028 distinguished; Taylor & Taylor (2001) FamCA 866 followed.

Applicant:

M M V (formerly A by her litigation guardian B T V)

Respondent:

K A

File No:

ZM 5525 of 2001

Delivered on:

1^st November 2001

Delivered at:

Melbourne

Hearing Dates:

23 & 31 August 2001

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Mr I Mawson

Solicitors for the Applicant:

Taussig Cherrie & Associates

DX 38236 Flagstaff
Melbourne

Counsel for the Respondent:

Ms V Bennett

Solicitors for the Respondent:

Hogg & Reid

Level 7,555 Lonsdale St.
Melbourne

ORDERS

BY WAY OF INTERIM PROPERTY ORDERS IT IS ORDERED THAT:

The Husband and Wife forthwith do all acts and things to sell the investment property in the State of Victoria by public or auction or private treaty on terms and conditions to be agreed and to disperse the proceeds of the sale in the manner of following:
(a)in payment of costs and expenses of the sale
(b)in discharge of all registered encumbrances
(c)in payment thereof to the wife of a sum equal to 40% of the balance then remaining; and
(d)in payment to the husband of the balance.
Contemporaneously with the settlement of the property in Order 1 hereof or by the 7^th day of January 2002 whichever is the later, the husband pay to the wife the sum of $101, 380.00
Upon payment to the wife of the sum of $101,380.00 the wife sign all documents and do all things necessary to transfer her right title and interest in the property situate the former matrimonial home to the husband at his expense.
The husband indemnify the wife in relation to all liability relating to the former matrimonial home.
The parties have liberty to apply in relation to the terms and conditions of sale of the property the subject of the order in Order (1) hereof.
In the event that there is any capital gains tax payable by the husband as a consequence of the sale of the investment property the wife pay or reimburse the husband for one half of the capital gains tax payable within 14 days of presentation to her by the husband of:
(a)a copy of the tax assessment whereby the capital gains tax is discretely identified, or, failing a discrete assessment;
(b)a copy of the income assessment whereby the tax is payable but not identified together with a calculation by the husband’s Accountant indicating what portion of the tax assessment represents capital gains tax and how that assessment is arrived at.
Unless otherwise specified in these orders:
(a)each party be solely entitled to the exclusion of the other to all other property and chattels of what sort of a nature and kind in possession of such party as of the date of these orders for this purpose bank accounts are deemed to be in possession of the person whose name appears on bank records thereof, and insurance policies are deemed to be in the possession of the owner thereof;
(b)each party be solely liable for an indemnify the other against any liability encumbering the item of property to which that party is entitled to pursuant to these orders.
All documents produced under subpoena be collected by the solicitor issued by the subpoena and all documents be forthwith returned the their owner.
All Exhibits be returned at the expiration of 28 days unless an appeal is lodged.
The wife’s application for maintenance filed on the 21^st day of December 1999 be and is hereby dismissed.
The husbands application for settlement of property filed on the 16^th day of December 2000 and the wife’s Response filed on the 25^th day of February 2001 be otherwise adjourned to a directions hearing by telephone at 9:30am on the 8^th day of November 2002.
Until further order the husband be restrained and an injunction is granted hereby restraining him from making any application or doing any act or thing causing his entitlement to superannuation benefits in the BT Superannuation Fund and the ComSuper Superannuation Fund to become payable to him.
The wife forthwith serve a sealed copy of these orders upon the trustees of the BT Superannuation and the Comsuper Superannuation fund.

IT IS CERTIFIED THAT

Pursuant to Rule 15.1 of the Federal Magistrates Court Rules it was reasonable to employ an advocate to represent the parties in the proceedings.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

ZM 5525 of 2001

M M V

Applicant

And

K A

Respondent

REASONS FOR JUDGMENT

Introduction

The applications concern competing applications for property settlement, spousal maintenance and travel expenses for the children.
The wife commenced proceedings seeking maintenance on

21 December 1999. Proceedings for property settlement were commenced by the husband on 16 December 2000 and the wife filed a response on 25 February 2001. Those proceedings were transferred to the Federal Magistrates Court on 15 May 2001 with the consent of the parties.
On 23 August 2001 an Order was made appointing B T V as the litigation guardian for the wife in these proceedings pursuant to Rule 11.11 of the Federal Magistrates Court Rules.

Background

The wife was born on 25 October 1959 and is currently aged 41. The husband was born 8 April 1960 and is 41. They commenced cohabitation in January 1984 and were married on 29 September 1984. They separated in March 1999. Proceedings for divorce have been commenced but not yet determined.
There are three children of the parties, J P A born 14 May 1989, aged 12 years; N J A born 10 June 1991, aged 10 years, and N S A born 18 June 1993, aged 8 years. The children reside with the husband pursuant to orders made by consent by the Family Court of Australia on 18 May 2001.
The parties originally met when in 1979 when they were both students at the University of New South Wales. The husband was in his second year of an engineering degree. The husband completed his fifth and final years of engineering studies at the University of Sydney in 1982, having obtained sponsorship from the Royal Australian Air Force (RAAF). That sponsorship required the husband, after completion of his course, to be bonded to the RAAF for a period of time. In 1983 the wife completed a graduate diploma in audiology at Macquarie University.
When the parties commenced cohabitation in approximately April 1984, the husband had a posting to the RAAF base in Williamtown, Newcastle. The wife obtained employment as an audiologist in Newcastle but while she was there she was admitted as a psychiatric patient to the Mater Hospital for treatment for anorexia nervosa.
In April 1984 the parties purchased their first home in New South Wales. The husband contributed $20,000 by way of savings, accumulated largely prior to the commencement of cohabitation and the balance was borrowed from a commercial lender and with a personal loan from the Defence Force Credit Union.
At the end of 1985 the husband was transferred to RAAF Support Command in St. Kilda Road, Melbourne. The parties moved to Melbourne and rented out their home. In 1987 the wife obtained employment as an audiologist in Melbourne. In 1989 the RAAF posted the husband to the Royal Melbourne Institute of Technology to complete a masters degree in engineering and he completed his post graduate studies within one year and was employed as a tutor by RMIT in the field of digital electronics.
Following their arrival in Melbourne and for most of 1986, the wife suffered from a recurrence of her psychiatric illness for which she required hospitalisation and recuperation at home. J was born in May 1989. The wife was primarily responsible for caring for J and for running the home and the husband assisted in J’s care.
In approximately 1989 the parties purchased an investment property which was financed by way of first mortgage and a deposit from the joint savings of the parties. The property was registered in the sole name of the husband.
In 1990 the husband was posted to Canberra where the parties rented a home. N was born on 10 June 1991.
At the end of 1991 the husband resigned from the RAAF and ended his career as a military engineer. Upon his resignation he received superannuation entitlements of approximately $15,000 net in cash and his preserved entitlement in the ComSuper scheme to which he thereafter made no further contributions and which at the time of hearing was worth approximately $95,700.
In 1991 the husband and wife purchased the former matrimonial home. The property was purchased with the cash component of the husband’s superannuation, the net proceeds of the sale of their property in New South Wales, joint savings and borrowings of $40,000 from the Commonwealth Bank of Australia, secured by way of first mortgage.
In September 1991 the husband commenced employment as a software engineer for Telstar Systems. His remuneration package at that time was $75,000.
N was born on 18 June 1993. In 1993 the wife inherited $10,000 from the estate of her late grandmother.
In mid-1996, when the children were 3, 5 and 7 years old respectively, the wife returned to part-time paid employment working three days a week at the Bionic Ear Institute. The parties used a combination of school, after-care, creche and a live-out nanny.
In 1996 the husband’s employer changed ownership and changed its name to RLM Systems. By that time his package, inclusive of superannuation and salary sacrifices, was approximately $90,000. The wife decided that she did not want to work outside the home in late 1997, so she ceased her employment and the parties discharged their nanny, and the wife became a full-time parent to the children.
Around this time, the wife informed the husband that she thought she should start seeing a psychiatrist again and in late 1997 and 1998 the wife required hospitalisation as a result of her depressive illness. She was hospitalised for approximately six weeks in November/December 1997, a month in January/February 1998 and approximately two months in April/May 1998. During this time the husband assumed responsibility for the care of the children, including the responsibility for ensuring that they regularly visited the wife in hospital. During this period in addition, the wife’s mother came from Sydney to help the husband look after the children.
The wife’s depressive illness seems to have escalated during this period. Her situation required the husband to obtain the assistance of two live-in nannies and one live-out nanny in 1998. When the wife came out of hospital, she would discharge the nanny or require the husband to do so, leaving him to have to re-employ a nanny when she was hospitalised. During her periods of hospitalisation, she was receiving medication and electro-convulsive therapy. When she was at home, there were occasions when she took overdoses of medication and her mood was at times uncommunicative or aggressive and accusatory towards the husband.
The husband’s unchallenged evidence was that during the periods when the wife was not hospitalised, it was:
“… enormously difficult to maintain some sense of equilibrium within the household for the benefit of the children. Sadly, and through no fault of her own, the wife’s actions often threw the household into chaos…When I needed to, and did, employ a live-in nanny to assist me with the children, upon the wife coming home from hospital, she insisted that the nanny’s employment be terminated. The wife indicated that the nanny’s presence was intrusive and an interruption to our normal home life and invariably that she was ‘cured’ and did not require assistance. I was loath to do anything to undermine the wife’s confidence or happiness when she returned home. Accordingly, we would struggle on without a nanny until the wife was again admitted to hospital, whereupon I would have to hire another nanny, and so the cycle continued.”
In addition, the children were affected by the recurrence of the wife’s illness during this time. J’s emotional state was such that he had psychotherapy for most of 1998. He was aggressive to other children and his level of concentration and cooperation at school dropped away, so his school life was as disrupted as his home life was on occasions.
Between May 1998 and 21 July 1998, the wife lived with her parents, B and M V. Her parents live between their homes in Sydney and Queensland. During this time the children remained with the Husband and due to the Wife’s behaviour in the household the Husband actively encouraged her to stay with her parents. By late July 1998 the Wife said that she wanted to come home and did so. However, not long after her return to Melbourne she was admitted to the Melbourne clinic, again in September, twice in November and in December.
During a visit to the Wife’s parents in Sydney for the Christmas holidays in December, the Wife’s condition deteriorated and she was admitted as an in patient to a clinic in Sydney. The Husband and children returned to Melbourne and the Husband asked the Wife’s parents to keep her in Sydney for the time being until she was stable. She was an inpatient from the 31^st day of December 1998 until the 19^th day of February 1999.
In March 1999 the Wife insisted that she return to the family in Melbourne. On this occasion the Husband refused because he felt that she had not recuperated adequately from her last hospitalisation and that she needed to completely recover. Further, he was concerned that the children were fragile and their long term emotional welfare was in jeopardy if the Wife returned and if episodes of her illness recurred. The Husband told the Wife on this occasion that he wanted a divorce and ultimately she remained in Sydney.
In April 1999 the children spent the Easter holidays in Sydney with their maternal grandparents and the Wife, and the Husband travelled to the United States for work during that time. There was acrimony between the Husband and the Wife and her parents at the beginning and end of contact. Nevertheless, the children returned to Melbourne on the 18^th day of April to live with the Husband.
During the Husband’s absence in America, the Wife placed into her sole control, capital funds as follows:
(a)cash management account with a balance of $35, 500.00
(b)she retained control of the term deposits of $18,000.00 in total held, on trust for the children in the Commonwealth and St Georges bank; and
(c)she withdrew from the check and savings account the sum of $3,500.00.
The use of these funds and the extent to which they should be included in the asset pool (if at all) became an issue in the proceedings.
Almost immediately after the children had returned to Melbourne, the Wife’s parents returned the Wife to the former matrimonial home in Melbourne and remained there with her. The Wife insisted that the Nanny’s services be terminated and the Wife’s parents took rental accommodation close by the former matrimonial home.
On the 23^rd day of April 1999 the Husband made an urgent Application to the Family Court of Australia for parenting orders whereby the children could live with him, the Wife live elsewhere and the children have alternate weekend contact with the Wife. As a result of an agreement reached at mediation the Husband discontinued proceedings. Notice to the tenants in the investment property was given, however the Wife remained in the former matrimonial home even after that property became vacant. Between April and August 1999 both parties and the children lived in the home. On two occasions the Husband called the crisis assessment team and in August 1999 the Wife while medicated was involved in a motor vehicle accident whilst N was in the car with her. On the 19^th day of August 1999 she was admitted to Albert Rd Clinic where she remained until the 1^st day of September 1999.
Prior to her discharge on the 1^st day of September 1999 the Husband rented and moved into a one bedroom unit. He had the children for half of the time. On the Saturday before Father’s Day when the children were with the Wife, she accused the Husband of taking the children, when in fact the children were playing at friend’s home which had been organised by the Wife but forgotten about. Other concerning incidents occurred about this time and the Wife was readmitted into the intensive care unit where she remained until the 23^rd day of October 1999. During this period, the Husband and children lived in his unit.
The Wife applied for an administrative assessment of child support and the Husband was required to pay child support from September 1999. He did so and in addition from April to September he continued to pay all household expenses. He paid child support between September and January of $1,148.00 per month as well as his own rent and expenses, and child support was paid regardless of whether the Wife was at home or in hospital. The Wife’s medical care, including full accommodation expenses was met by the parties’ medical insurance program.
The Wife was released from the Albert Rd Medical Clinic on the

1^st day of November 1999 but was unable to remain at home and readmitted on the 7^th day of November until the 12^th day of November.
Upon her release on the 12^th day of November the parties formulated a parenting plan which provided for the children to live with them each for one half of the time. The Wife was to remain in the home and the Husband was to have them in the flat that he rented. The Husband’s evidence which again was unchallenged, was that when the Wife’s mental health began to decline and she was very negative towards him and distrustful of him, the plan was unworkable and/or detrimental to the children.
In December 1999 the Husband was effectively demoted at work and given a different position within RLM Systems. Although the position was of little consequence within the organisation he was able to adjust his work hours and was relieved to have minimal obligations to travel.
After January 2000 the parenting plan began to break down. The Wife commenced proceedings by filing an application for maintenance for herself on the 18^th day of January 2000 and on the 16^th day of February 2000 the Husband made an Application to the Family Court for specific parenting orders which if granted would have provided for the parties to continue to divide the care of the children between them, but gave the Husband the ultimate responsibility in case the Wife’s mental health deteriorated.
On the 25^th day of February 2000 orders were made by consent whereby the Husband and the Wife each have the children for seven nights per fortnight and there were certain safeguards whereby the Wife authorised her psychiatrist to provide information to the Child Representative whereby the children could be removed from the care of the Wife if a family friend, Pastor A N thought that they should be.
The Orders were made on the 25^th of February 2000 and the Husband was due to collect the children after school on the 28^th of February 2000. On the 26^th of February 2000 the Wife’s sister telephoned him and informed him that the Wife was too ill to care for the children and that he should collect them. On the 29^th of February he learnt that the Wife was an inpatient at the intensive care unit of the Albert Rd Clinic.
As a result, on the 2^nd of March the Husband filed a further Application seeking an immediate suspension of the orders made on the 25^th of February and on the 10^th of March 2000 orders were made that provided that the children reside with the Husband temporarily. In fact, since that time the children have not resided with the Wife except for periods of contact in Mackay that have been agreed between them and generally supervised by her parents.

From February until April 2000 the children lived with the Husband in his rented accommodation. When the Wife was discharged from hospital she returned to the former matrimonial home for a couple of weeks. Over Easter 2000 the Wife left Melbourne permanently and went to live with her parents in Mackay. Prior to doing so she told the Husband he could return to live in the former matrimonial home with the children and he and the children then moved back in to the home.
Since April 2000 the children have visited the Wife in Mackay on each school holiday period. With the assistance of the child representative, the parties were able to reach a final agreement and final parenting orders were made by consent in the Family Court of Australia on the 18^th day of May 2001. Pursuant to those Orders the children reside with the Husband, the Wife and Husband have the joint responsibility for the long term decisions affecting the children and the children have contact with the Wife on each school term holiday and for one half of the long summer school vacation. The contact takes place in Mackay in the Wife’s home which is a townhouse rented by her not far from her parents. Her parents assist in supervision of the contact.
The question of the responsibility for payment of the children’s travel costs for the purpose of contact with the Wife is an issue to be determined in these proceedings. The Husband has been paying one half of the travel expenses and the Wife seeks Orders which would provide for him to continue to meet half of their expenses. The Husband opposes that application and proposes that the Wife be responsible for payment of those costs. His opposition to this arrangement continuing is based upon his asserted inability to make the payments.

Orders sought

In addition to the assets of the parties which include the former matrimonial home and the investment property, the Husband

and Wife have superannuation entitlements. The Husband’s superannuation totals $163,079.00 from two funds one of $67,338.00 in BP and the other being $95,741.00 in Comsuper. It is agreed that the Wife has small policies which total $4,482.00. The Wife may be able to access her superannuation if an application were made to release the funds as a result of her ill health. It was common ground however that the Husband would not be able to access the money in his superannuation fund whilst he was still working.
The Husband sought Orders which would provide him with the matrimonial home unencumbered and “a small nest egg”. At least, the Husband sought that the former matrimonial home be transferred to him unencumbered. This would be achieved by a sale of the investment property and discharge of the mortgage. It was submitted on behalf of the Husband that his contribution exceeded the Wife’s to the extent that there should be a division of assets as to 65% to the Husband and 35% to the Wife on the basis of contributions. There should then be adjustments pursuant to section 75(2) taking into account both the circumstances of the Husband and the Wife. The Husband’s position in essence was that whatever the percentage result, a just and equitable result as required by the terms of section 79 of the Family Law Act 1975 should result in him retaining the former matrimonial home unencumbered and a modest sum of money.
The Orders sought by the Wife were that she should receive funds which equated to 60% of the net assets of the parties and that there should then be an adjustment for the Husband’s significantly greater superannuation.
At the commencement of the hearing, the Husband’s counsel submitted that the orders sought by the Husband should also involve him retaining his superannuation with no further adjustment in favour of the Wife. The Husband’s counsel, however, foreshadowed that alternatively, if justice and equity to the Wife could not be done without adjusting the Husband’s superannuation, then it may be more appropriate that the question of superannuation be determined at a time when the court has the capacity to make orders directly affecting a division of the superannuation between the parties. This could be achieved when the Family Law Amendment (Superannuation) Act 2001, and Family Law Superannuation Regulations 2001 come into effect. The date when the legislation comes into effect will be no later than December 2002. In final submissions the Husband’s Counsel formally sought an adjournment of the proceedings pursuant to Section 79(5) until 2003 when the Family Law Amendment (Superannuation) Act has come into effect. The Husband sought that in the interim orders be made in relation to the property of the parties other than superannuation, as a partial or interim property settlement.
Whilst the Wife did not consent to that course, nevertheless her Counsel agreed that both parties have significant needs at the present time and that to adjust the superannuation now from existing assets may well create an injustice to one or other of the parties. Hence, the most appropriate way of adjusting the assets between the parties to cater to their present needs, may require a partial property settlement with an adjournment of the matter to enable superannuation to be dealt with as property which cannot occur until the relevant legislation referred to takes effect.
No submissions were directed to Spousal Maintenance nor were any Orders sought at the hearing. Accordingly, the Wife’s Application for spousal maintenance will be dismissed.

The Law

The approach to the determination of an Application under Section 79 is well established by authority ( Lee Steere & Lee Steere (1985) FLC 91-626 , Ferraro & Ferraro (1993) FLC 92-335, Clausen & Clausen (1995) FLC92-595 ). The process ordinarily involves a four part procedure. First, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in Section 79(4) (a) to (c). Thirdly, evaluating the matters contained in Section 75(2) insofar as they are relevant.
Finally, in determining what order the Court should make under Section 79 the Court must be satisfied in all the circumstances that it is just and equitable to do so (Section 79(2)). It is the just and equity of the actual orders that the Court must consider (Russell & Russell (1999) FLC 92-877).

Issues for determination

The asset pool

By the time the hearing concluded the parties had agreed on most of the value of items to be included in the asset pool. The respective position of the parties was as follows:

Husband	Wife
Assets
Former matrimonial home (joint names (unencumbered))	$280,000.00	$280,000.00
Investment property ($180,000 gross agreed price less mortgage of $45,405)	$134,595.00	$134,595.00
Husband’s share portfolio	$14,025.00	$14,025.00
Husband’s car	$17,000.00	$17,000.00
Wife’s car	$6,000.00	$6,000.00
Wife’s funds · $11,489.00 balance of funds removed from parties cash management account April 1989 · $18,460.00 in accounts in the names of the children · $2,434.00 CBA account
	$32,383.00	$29,949.00
	*TOTALS*	$467,003.00	$464,569.00
	Liabilities
Husband’s Tax	$20,042.00
Realisation costs on investment property	$17,000.00
*NET POSITION*	$430,003.00	$464,569.00
Addbacks
Wife’s fund being removed from the parties cash management account spent by the Wife	$24,011.00
Wife’s share portfolio used by the Wife for legal costs	$21,159.00
Increased mortgage on investment property used by the Husband	$7,444.00
NET TOTALS	$475,173.00	$472,013.00

The parties agreed that the Husband’s household contents and the Wife’s household contents in their respective possession should not form part of the assets for further division and that each party would retain the assets they had.
The Husband then proposed that there would be various add-backs to the asset pool of sums used by the Wife. These were:
a)Wife’s funds of $24,011.00 being funds removed by the Wife from joint funds in April 1999;
b)Wife’s share portfolio of $21,159.00;
The Wife submitted that the sum of $7,444.00 being the increase on the mortgage from $37,961.00 to it’s current balance of $45,405.00 should be added back as having been received by the Husband.

Liabilities

The Husband asserted that his tax liability of $20,042.00 should be taken into account plus realisation costs on the investment property of $3,000.00 being cost of sale and capital gains tax of approximately $14,000.00, making a total of $17,000.00.
The parties also disagreed as to whether, and if so to what extent there was an imbalance in their contributions during the course of the marriage. Both parties submitted that the adjustment for their needs pursuant to Section 75(2) should result in the orders sought by them. On the Husband’s side this involved his responsibility for the financial support of the children as well as their day to day care for what is likely to be the total period of their dependency. It was submitted that his now uncertain employment future should be taken into account so that he has an unencumbered home and the capacity to continue to support the children even when he has periods when he is not receiving an income. The Wife relied upon the fact that she is not only by reason of health incapable of supporting herself, but in all likelihood incapable of independent living for any significant periods.

Affidavits relied upon by the parties

The Wife relied upon the following affidavits:
a)Affidavit of B V (Litigation guardian) sworn and filed on the 21^st day of August 2001;
b)Financial Statement sworn by B V on the 21^st day of August 2001;
c)Affidavit of G F (Doctor) sworn and filed on the 22^nd day of August 2001;
d)Affidavit of the Wife sworn and filed on the 24^th day of February 2000;
Affidavits relied upon by the Husband:
a)Affidavit of the Husband sworn and filed on the 22^nd day of August 2001;
b)Financial Statement filed on the 23^rd day of August 2001;
c)Affidavit of K L E sworn on the 23^rd day of August 2001;
d)Affidavit of Mr B filed on the 10^th day of March 2000

Evidence and findings

Findings in relation to the asset pool

In January 1999 the Wife transferred the cash management account of $35,500.00 into her own name. She did so she says because the Husband had indicated that he did not want her to return home after her release from hospital and he had left her with no money.
She withdrew the sum of $1,000.00 on two occasions prior to separation. She asserts that she did so to meet some of the parties living expenses. Between April and November 1999 she withdrew funds to pay for the children’s expenses, general household expenses and her medical and chemist expenses.
In November 1999 she purchased a Mazda 121 motor vehicle for $10,000.00. She had managed to save $5,000.00 of her own and then withdrew $5,000.00 from the cash management account. As at the 24^th day of February 2000 the balance of the cash management account was $21,223.00.
$3,000.00 was subsequently used to furnish the Wife’s flat in Mackay and otherwise the finds have been used to supplement her disability pension. At the date of hearing the balance of that account was $11,489.00.
I find that the amounts withdrawn from the account during this period were reasonably used by the Wife for her support in addition to the disability pension that she was receiving. She was not receiving any support from the Husband although child support was being paid for a period. She had no other funds available to her and in the circumstances in which the Husband was able to use other funds which became available to him from his redundancy and from borrowings, it was not unreasonable for the Wife to use some of these funds for her personal support. In that respect she should not be required to account for the entirety of the funds.
The Husband used funds in a similar manner and I determine for the calculation of the asset pool that only the balance of the funds which the Wife still has of $11,489.00 should be brought into account.
The Wife also took control of three accounts in the name of the children at St. George Bank (a fixed term account) and two fixed term accounts at the Commonwealth Bank. It was agreed that for the purpose of the proceedings, the amount in the bank was at least $18,460.00. It was common ground that the funds in these accounts had come from the savings of the parties. It was submitted on behalf of the Husband and not disputed by the Wife, that although the accounts were styled “on trust “ for the children that beneficial ownership did not in reality pass from the parties. Accordingly I find that the accounts held by the Wife in the name of the children should be regarded as property of the parties and added into the asset pool.
The remaining account is a small account at the Commonwealth Bank in the Wife’s name. If I bring into account the Wife’s present savings then I do not bring into account the sum of $3,500.00 from April 1999 which the Wife appears to have spent in a manner similar to that in which she expended the sum from the cash management account.
Both the Husband and the Wife had a share portfolio at the time of separation. The parties were involved in litigation over their children in the Family Court which continued for some time and they both incurred expenses for their lawyers. The Wife’s parents funded her legal costs which they described as being “substantial”. In July 2001 the Wife transferred her share portfolio to her parents for past payment for her legal expenses. The value of her share portfolio at the time of transfer was $21,159.00. The Husband submits that the sum should be added back to the asset pool.
In August 2000 (without reference to the Wife who is not on the title) the Husband renegotiated the mortgage secured over the investment property. He increased the mortgage facility from $37,691.00 to $90,000.00 and freed up $50,000.00 in funds which he did not draw down in its entirety.
At the time of hearing the Husband still had a substantial amount of the drawdown standing to his credit in a MISER account. That account was $44,992.84 in credit. The mortgage loan account balance, including the re-financing by the Husband was $90,397.92. The net effect of combining the two was that the Husband owed $45,405.08, which was secured by the mortgage over the investment property.
On the 21^st of January 2001 the Husband left his employment with RLM and received a redundancy payment of $50,311.60. The Husband accounted for the use of these funds in the following manner:
a)$17,450.00 was used to pay out the lease on the car;
b)$6,515.00 was spent on repayment of credit cards;
c)$4,923.00 was paid to Wisewould’s, the Husband’s previous solicitors;
d)$6,000.00 was paid to the Husband’s current solicitors;
e)$6,877.00 was accounted for by the Husband as being spent as living expenses
This left a balance of $8,546.00 which is unaccounted for by the Husband and had been used by him for his benefit. I find that of the sum of $50,311.00, the Husband spent $15,423.00 on living expenses for himself and his children together with $6,500.00 on credit cards, leaving a total of $21,923.00. He has also spent, from capital, $10,923.00 on legal expenses. In addition, as the net liability secured against the property is $7,444.00 greater than it was at separation the Husband has also had the benefit of that sum.
In addition, the Husband used some of the funds that he had drawn down on the mortgage to purchase shares. He said that he had drawn the money down to pay tax but used it to pay for shares. He spent a total of $11,450.00. Some of those shares were sold at a profit and those that remain comprise the Husband’s share portfolio of $14,025.00 which is made up of Coles/Myer shares and Telstra shares. The effect of the share trading was that the Husband had further sums available to him to support himself and the children during this period.
In addition to the sums expended, the Husband was working and earning an income during this period. Until January 2001, the Husband was working full-time for RLM systems. Approximately two weeks after his retrenchment he obtained his current job which is a part-time position working four days a week as a sales engineer. He has been earning approximately $440.00 per day gross. The evidence of the Husband’s accountant based on information given to her by the Husband in order to calculate his current tax liability was that for the five months February to June the Husband received income net of GST of $36,520.00. For the balance of the financial year that is the 1^st day of July 2000 to January 2001 the Husband received gross salary of $66,914.00 and long service leave. His tax is calculated after allowing for Medicare levy and tax instalments paid.
The Husband asserted that on the basis of the calculation done by his accountant he had a liability for income tax and GST for the year ended 30^th day of June 2001 of $15,542.30. This he submitted, should be taken into account, and he calculated the total sum owing to be $20,042.00 based upon income earned to the 22^nd day of August 2001.
The Husband does not claim to have any sum outstanding to his lawyers. The Wife claims to have the sum of $33,700.00 owing to her lawyers.
The Wife’s counsel submitted that in considering whether any suns should be added back to the asset pool for the amounts expended by the Wife that the following should be considered:
a)that the Husband had received the benefit of approximately $32,860.00 from joint accounts being:
·$8,546.00 not specifically accounted for from him redundancy pay ;
·$6,877.00 used on living expenses from his redundancy;
·repayment of his credit card of $6,515.00;
·payment of legal expenses to a total of $10,923.00
b)this he submitted should be contrasted with the amounts which the Wife had expended. Of the $35,500.00 taken by the Wife she had spent $5,000.00 on her car and brought to account a balance of $11,489.00. That leaves $19,011.00 spent on other living expenses. The Wife then transferred her share portfolio of $21,159.00 to her parents to offset legal fees, making total expenditure of approximately $40,000.00;
c)that the Husband’s expenditure of about $34,000.00 compared to the Wife’s expenditure of $40,000.00 should result in no adjustment to either party.
Having regard to the evidence of the parties I am satisfied that each of the parties has used the sums withdrawn by them for their genuine living expenses and in the Husbands case that of the children. There is no suggestion on the evidence that either party has been extravagant in expenditure of funds. Both parties have used funds available to them to meet legal expenses. Neither party submitted that the Court should add back legal expenses although this was canvassed during the hearing. For those reasons, I find that the asset pool should not include the Wife’s share portfolio or funds spent and for the same reason the difference between the mortgage at separation and at hearing should not be added back on the Husband’s side.

Liabilities

As a consequence of my findings the liability attached to Kambrook Road, Caulfield is $45,405.00.
The Husband argued that his tax liability of $20,042.00 should be taken into account. The evidence in support of his liability is contained in the Affidavit of his accountant K L E whose opinion is based upon information given to her by the Husband. The Husband conceded that his accountant’s figures were an estimate of the tax that should be payable. His tax return has not yet been completed and his deductions have not yet been taken into account. He conceded that a more reliable document would be a draft tax return but that had not been prepared, and he further conceded that he was putting forwarded a conservative figure. He said that it was a “raw calculation without possible deductions”. I find that the figure put forward by the Husband’s accountant is not accurate as to his likely tax liability in that it is based upon gross income and takes no account of his deductions. There is no reliable evidence before me of what the Husband’s tax liability will be but I accept that he will have a liability for tax.

The argument on behalf of the Wife is that the Husband has had the benefit of the income and should have been saving for payment of tax. The orders will need to leave the Husband with sufficient funds to meet all aspects of his eventual tax liability of something less than $20,000.00

Accordingly, I find the assets and liabilities of the parties are as follows :

Assets
Former matrimonial home (joint names (unencumbered))	$280,000.00
Investment property ($180,000 gross agreed price less mortgage of $45,405)	$134,595.00
Husband’s share portfolio	$14,025.00
Husband’s car	$17,000.00
Wife’s car	$6,000.00
Wife’s funds · $11,489.00 balance of funds removed from parties cash management account April 1989 · $18,460.00 in accounts in the names of the children · $2,434.00 CBA account
	$32,383.00
	*TOTAL*	$467,003.00

Findings in relation to earning capacity

The Wife’s present psychiatrist said in a report dated the 21^st day of August 2001
“She is presently in an acute care unit at the M B Hospital and has been there since the 30^th day of July 2001. She is severely depressed, suicidal and not eating …
Even prior to this admission Mrs V’s functionality would significantly below what one would beat the lowest level of sustainable independent living …
It is likely that she is going to have frequent, regular and ongoing admissions to hospital for her depression and suicidality. It is also the case that her capacity for independent living or any sort of gainful employment in the future is almost zero.”
Support workers and carers are highly probable necessities for the future. No assessment of the potential cost of care was provided.
In approximately January 2001 RLM Systems made the Husband redundant and he received a redundancy payout. About two weeks after his retrenchment he obtained another job. It was a part time position working four days a week as a Sales Engineer. This position was by way of contract between the Husband and W T Ltd and he was earning approximately $440.00 per day.
On August the 6^th 2001 he was advised by W T Ltd that the entity by which he was employed had been sold and his services would not be required. The Husband’s evidence was that he hoped to obtain some employment as a consultant technical writer but he anticipated that there would be periods when he would not be in receipt of any income.
The Husband had submitted his curriculum vitae to organisations and had considered the possibility of becoming a tutor or lecturer but his engineering skills are not current because of his more recent managerial experience. The evidence was that his options are now limited to being a technical writer but that job was not well paid. He anticipated that he would be able to earn an income as a counsellor or technical writer earning up to $60,000.00 per annum as a contractor, however, he considered that would be the best situation and that the income would not be available to him necessarily for twelve months of the year. In the times when income is not available he anticipated needing to live on a sole parents benefit.
It was the Husband’s position that this was a relevant factor and that whatever orders were made he should be in a position where if he had no income coming in he could dispense with the services of the full-time Nanny, apply for a sole parent pension and support himself and children for periods when he was without an income. In order to maximise his capacity to care for the children, he submitted that the orders that should be made should leave him with an unencumbered property and a small sum by way of a “nest egg” which would assist him in times when he had no contract income available.

Contributions

It was submitted on behalf of the Wife that the contributions of the parties throughout the course of the marriage in their respective capacities as provided in section 79(a) to (c) of the Act should be regarded as equal. The submissions on behalf of the Wife were that from 1985 to 1991 the parties had contributed both financially and non financially and in particular the Wife had moved on three occasions with the Husband in furtherance of his career. It was conceded that between 1986 and 1989 the Wife had symptoms of the depressive illness but these did not significantly effect the contributions that she was then making. Between November 1997 and separation it was conceded that the Wife’s illness created difficulties for the family and that the Husband was making a significant contribution but that this period should be balanced against the efforts that the Wife was making during that time and against the contributions that were made by her during the entirety of the marriage.
The submissions for the Husband were that there were eight discrete periods to be considered in relation to contributions during the marriage which were as follows:
(1)the initial period when the Husband made a contribution of $20,000.00 from his own resources prior to the marriage. This had to be offset by the Wife’s later inheritance of $10,000.00;
(2)the period from April 1984 to April 1985 which should be considered as being a period of equal contribution;
(3)for the period in 1986 which due to the Wife’s ill health should not be regarded as equal;
(4)the period form 1987 to 1997 which should be regarded as an equal contribution;
(5)the period from late 1997 to December 1998 in which it was submitted that there was no appreciable home making contribution by the Wife and no financial contribution by her. During this period the Husband was the sole breadwinner and was solely responsible for the homemaker and parents tasks. It was submitted that these were “special contributions” as that term is used by the Full Court in JEL v DDF (2000) Fam CA 1353 at paragraphs 133 – 136;
(6)after 1998 the Husband was the sole homemaker and breadwinner but the period was not as difficult as the previous one;
(7)between 1999 and 2000 there was no homemaker or financial contribution by the Wife and the circumstances of the Wife’s illness at that time made it extremely difficult for the family and accordingly increased the Husband’s contributions;
(8)from Easter 2000 to date, both roles are being discharged by the Husband so the contributions should not be regarded as equal though this period is not as difficult as previous periods The husband is meeting half the costs of contact between the children and the Wife.
It was submitted that considering all of these matters a finding should be made that the Husband had contributed to a greater extent than the Wife in a proportion of 65% to the Husband and 35% to the Wife.
This was a marriage of approximately 15 years in which the parties had three children. For a great deal of the marriage the Wife was free of her symptoms. In my view it is appropriate to regard the contributions made by the parties during the marriage in a global sense rather than to consider them in the somewhat clinical and discrete periods into which the Husband has broken it down. For much of the marriage the parties did make an equal contribution having regard to their respective roles. Until 1997 the Wife was the primary caregiver for the children and had also made financial contributions through her employment. There were periods of hospitalisation up to that time, but not so as to significantly affect her contribution.
The Husband’s initial contribution must also be considered in light of the length of the marriage and contributions made by each of the parties. In Quaresimini & Quaresimini (1999) (Fam CA 1314) the Full Court said:
“In our opinion is it not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances to the initial contribution. It is necessary to weigh the initial contributions by a party with all relevant contributions of both the Husband and the Wife.”
In my view having regard to the totality of the contributions during the course of the marriage the Husband’s initial contribution should not be given any further weight.
In the latter periods of the marriage from late 1997 onwards, the Husband’s contributions exceeded the Wife’s and throughout this period the Wife made little contribution as homemaker and parent and no financial contribution. The Husband’s contributions were made in difficult circumstances. Whether these are regarded as “special”, “extra” or “extraordinary” contributions as described in JEL v DDF (2000) FAM CA 1353 paragraph 135, or not, there is no doubt that the Husband made a greater contribution than the Wife during this period and that contribution should be given weight. Those contributions have continued up to the date of hearing although there were periods when they were more significant than at other times. These contributions by him should be reflected in a finding that the Husband has made greater contributions than the Wife, having regard to the matters in Section 79(4)(a)-(c) inclusive in the proportions of 60% to the Husband and 40% to the Wife.

Section 75(2) factors

Each party conceded that there were factors to be taken into account pursuant to Section 75(2) on behalf of the other but each submitted that the factors attaching to their respective claims were more significant. The relevant factors in this case were as follows:
a)The age and state of health of the parties —
Both parties are the same age and the Husband is in good health. The Wife is not in good health due to a severe depressive illness. She has no capacity for work and her prognosis is not good. Although she is living independently at the moment there is doubt that she will be capable of independent living in the future;
b)The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment —
The Wife has no capacity for gainful employment. The Husband has the capacity to earn an income of up to $60,000.00 per annum. That capacity may increase as the children get older and he establishes himself as a consultant. If he is able to obtain employment, he will have income for the entirety of the year. If he establishes his own consultancy business then there may be periods where he is not in receipt of income in the course of a particular year. During these periods he would be entitled to a pension;
c)Whether either party has the care or control of a child of the marriage that has not attained the age of 18 years —
Pursuant to parenting orders the Husband is primarily responsible for the care of the children both primarily and financially. although they spend time with the Wife during school holiday periods;
d)Commitments of each of the parties that are necessary to enable to parties to support:
i)himself / herself;
ii)the child or another person that the party has a duty to maintain —
Each of the parties must contribute to their own support. The Husband is primarily responsible for the care of the children and receives no financial assistance from the Wife.
Part of the rationale for the Husband’s submission that a just and equitable result in the terms described by Section 79(2) would leave him with an unencumbered home and some funds, was that his financial commitments to the support of the children require that he be placed in that position. This he submitted was because in order to work full time, he had been employing and was required to continue to employ, a full-time live-in Nanny. This enabled him to go to work 4 days per week. Despite the assistance of a live-in Nanny the Husband would also care for the children in the evenings, over the weekend and on his weekday off, and was also responsible for shopping and other household duties. He submitted that it was necessary for him to continue to employ the Nanny at this level. During periods when he anticipated that he might have no income coming to him as a consultant, he planned to dispense with the services of the Nanny during those periods, to be engaged in full-time care of the children and to obtain a pension from Centrelink. He would then propose that when work came in again and his income recommenced that he would again employ the live-in Nanny. In order to enable him to make these arrangements, it was submitted that he required an unencumbered home and some funds which would help him to survive during lean periods.
There is no question that the Husband has been, in the last few years, the major source of both financial and physical and emotional support to the children. He has been able to provide a particular level of income as a result of his own experience and qualifications and to have the assistance of a full-time live-in Nanny. However, there are many sole parents who are able to work full-time and who do not have the luxury of a full-time live-in Nanny. Such parents will often need to use after school care, babysitters or even a part-time nanny to assist them in caring for the children. The relevant consideration is of the commitments of the parties which are “necessary” to enable a party to support their children . Whilst some of the services that the Husband has been utilising may be desirable, they are not “necessary” in my view for the support of the children and, the overall result for the Wife would not be a just and equitable one if the Husband’s requirements in this regard were elevated beyond what is necessary for the support of the children.
e)Subject to subsection (3) the eligibility of either party for a pension, allowance or benefit —
The Husband is entitled to a Centrelink pension at times when he is not able to earn an income. The Wife is entitled to a disability pension as a result of her illness. Her medical costs were being paid from the parties private health cover, but she is now a public patien ;
f)Where the parties have separated or the marriage has been dissolved, a standard of living in all the circumstances that is reasonable —
Both parties in their respective households are entitled to have a reasonable standard of living. This requires the Court to consider the standard of each of the parties. Although the Husband has the children to support, the Wife is also entitled to a reasonable standard of living. The Husband has an earning capacity which may increase as the children get older and some of his obligations in the household will become less time consuming and less onerous. In comparison the Wife has no earning capacity. Apart from her pension, she will be left only with any amount that she receives pursuant to these orders. In the future she is likely to need carers. The lifestyle which the Husband would like to have with the children must be weighed against a standard of living for the Wife which is also reasonable;
k)The need to protect a party who wishes to continue that parties role as parent —
The Husband has the responsibility for the children and his responsibilities in that regard must be given weight, but also weighed against the other matters under Section 75(2) that are relevant;
n)Any child under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, or wishes to provide, or might be to provide in the future for a child of the marriage —
In this case the Wife will not be in a position to provide Child Support and the Husband will be the sole financial provider for the children.
There are matters to be balanced on both sides. Having regard to all of the matters in Subsection 75(2) in my view there should be no further adjustment. This would result in a division of the assets (excluding superannuation) in favour of the Husband as to 60% and the Wife as to 40%.
In coming to this determination I take into account the Husband’s liability for income tax on his income earned in the last financial year and the year to date. Having regard to the fact that the Husband will be in receipt of a greater proportion of the assets, in my view it would be appropriate for him to continue to meet one half of the travel expenses for the children.
Because there will be some capital gains tax liability and costs of sale which relate to the investment property ( Rosati & Rosati (1998) FLC 92-804 ), I propose to make separate orders in relation to that property.
The remaining assets are as follows:
·    former matrimonial home   $280,000.00
·    Husband’s share portfolio  $ 14,025.00
·    Husband’s car  $ 17,000.00
·    Wife’s car  $    6,000.00
·    Wife’s funds  $ 32,383.00
·    TOTAL  $349,408.00
·    40% of total  =                   $139,763.00
The Wife will retain funds in bank accounts and her car which total $38,383.00. Accordingly, the Husband will be required to pay to the Wife the sum of $101,380.00.
In addition there will be orders which provide for the sale of the investment property, payment of the cost of sale and payment to the Husband of one half of the capital gains tax liability when that liability becomes due and payable. The net proceeds of sale of the payment of costs and expenses will be divided between the parties as to 60% to the Husband and 40% to the Wife.
The final part of the exercise of discretion is to consider whether the result reached by the process of considering the contributions of the parties and the matters in section 75 (2) is a “just and equitable” one. Sale of the investment property will result in the discharge of the mortgage. The Husband will be entitled to 60% of the net proceeds, but costs of sale will be deducted. The Husband will be entitled to about $78,000.00 assuming the property sells for its agreed value. The Husband also has a share portfolio, which if realised will yield about $14,000.00. These funds will enable the Husband to meet the amount payable to the Wife without any further borrowing He may have to borrow a small amount to meet his tax liability and legal costs, but he may on the other hand be able to save from his earnings. He will however have a home which is either unencumbered or have modest borrowings which will not affect his ability to manage if he has periods in which he has no income. The Wife will have $101,380.00 from the husband, cash accounts which total $32,383.00 and her share of the investment property of about $52,000.00.

Superannuation

Having found that the result arrived at is a just and equitable one, it is axiomatic that if there were to be a further adjustment on account of the Husband’s superannuation, it would place the Husband in the position where he would have to borrow a considerable sum to pay the Wife. This would make him vulnerable if his income was uncertain and place the home and his financial capacity to provide for the children in jeopardy.
Counsel for the Husband sought an adjournment of the proceedings pursuant to section 79(5) of the Family Law Act until January 2003 with an interim or partial property settlement in the meantime. Section 79(5) of the Family Law Act provides:
"Without limiting the power of any court to grant an adjournment in proceedings under this Act, where, in proceedings with respect to the property of the parties to a marriage or either of them, a court is of the opinion-
(a)that there is likely to be a significant change in the financial circumstances of the parties to the marriage or either of them and that, having regard to the time when that change is likely to take place, it is reasonable to adjourn the proceedings; and
(b)that an order that the court could make with respect to the property of the parties to the marriage or either of them if that significant change in financial circumstances occurs is more likely to do justice as between the parties to the marriage than an order that the court could make immediately with respect to the property of the parties to the marriage or either of them,
the court may, if so requested by either party to the marriage, adjourn the proceedings until such time, before the expiration of a period specified by the court as that party to the marriage applies for the proceedings to be determined, but nothing in this sub-section requires the court to adjourn any proceedings in any particular circumstances."

Section 79(7) of the Family Law Act provides:
"The court may, in forming an opinion for the purposes of sub-section (5) as to whether there is likely to be a significant change in the financial circumstances of either or both of the parties to the marriage, have regard to any change in the financial circumstances of a party to the marriage that may occur by reason that the party to the marriage-
(a)is a contributor to a superannuation fund or scheme, or participates in any scheme or arrangement that is in the nature of a superannuation scheme; or
(b)may become entitled to property as the result of the exercise in his or her favour, by the trustee of a discretionary trust, of a power to distribute trust property,
but nothing in this sub-section shall be taken to limit the circumstances in which the court may form the opinion that there is likely to be a significant change in the financial circumstances of a party to the marriage."
Section 2 of the Family Law Legislation Amendment (Superannuation) Act 2001 provides that the Act commences on a day to be fixed by proclamation but if that has not occurred within 18 months of receiving Royal Assent, then it commences on the first day after the end of that period. The Act received the Royal Assent on the 28^th June 2001 and thus the Act will commence no later than the 29^th December 2002. Regulations have also been made.
The Amendment Act makes superannuation “property” for the purpose of an adjustment and the Act gives people the ability to divide their superannuation on marriage breakdown in the same way as their other assets, or where they are unable to agree, by Court order. It provides a complete set of rules for the division of any superannuation interest and superannuation trustees will be required to make any divisions specified in either an agreement or Court order. It was not contended by either party that the superannuation interest held by the husband will not be covered by this Act.
In the recent case of Van Essen & Van Essen (2000) FLC 93-028 the Full Court held that property settlement proceedings could not be adjourned, either under section 79(5) or under the general power of adjournment to await what was at that time just a possible change in the law. At the time that case was decided at first instance the Act had not even been introduced into Parliament and the Full Court held that it could not be said that any change in the financial circumstances of the parties would be likely as a result of the proposed legislation because it could not be concluded that the proposed legislation would be passed and nor could any conclusion be reached as to the final form of such legislation. By the time of the appeal the Bill had been introduced into Parliament but the Full Court held that that made no difference.
In relation to the general power to adjourn proceedings the Full Court applied well-settled principles which were to the effect that until the law is changed litigants are entitled to have their cases heard in a timely fashion under the law as it then exists. Thus, there should not be any adjournment to await the passage of any proposed legislation.
The situation has now changed; the legislation has passed, Regulations have been made and there is certainty about its application. The issues identified in Van Essen, supra, to the applicability of section 79(5) and the general power of adjournment no longer exist. In Taylor & Taylor (2001) Fam CA 866 , Strickland J. took this view and I respectfully follow his Honour’s decision.
It remains to consider in applying section 79(5), whether the pre-conditions set out in that subsection in order to invoke the power to order an adjournment, have been met. They are ;
(a)that there is likely to be a change in financial circumstances;
(b)that the likely change is a significant one;
(c)that having regard to the likely and significant change it is reasonable to adjourn the proceedings; and
(d)that an order made if that significant change occurs is more likely to do justice as between the parties than an immediate order.
In my view the change that will occur is that under the Amendment Act the parties have the ability to divide their superannuation by agreement or by requesting the Court to make an order and thus it alters, by adding to their rights, their financial circumstances. In this way the legislation provides for a significant change in the financial circumstances of the parties and, in this case, such a change is likely. Therefore I find that an adjournment under section 79(5) of the Family Law Act is both available and is appropriate in this case.
The circumstances of this case dictate that to do justice and equity to both parties the superannuation of the husband needs to be divided or accessed in some way without requiring an adjustment to be made from existing assets. That can be achieved by applying the new Act and in these circumstances an adjournment for a maximum period of 15 months is reasonable. Both parties sought orders by way of interim or partial settlement in relation to their other assets.
In my view the orders should be framed as interim orders. Section 5(2) of the Family Law Legislation (Superannuation) Amendment Act (2000) provides
“subject to subsections (3) and (4) the superannuation amendments do not apply to a marriage if the Section 79 Order or Section 87 agreement is in force in relation to the marriage at the start up time”
A Section 79 Order is defined in Section (4) to mean:
“An Order (other than an interim order) made under Section 79 of the Family Law Act (1975)”
The meaning of interim and partial property orders was discussed in Harris & Harris (1993) FLC 92-378. At page 79.929, the Full Court said
“The distinction which Nygh J drew in Burridge between an “interim” and a “partial” order appears to be that an interim order is one which operates until the final hearing but may then be submerged into the final order whereas a partial property order complete in itself but dealing with part only of the property and not intended to be a final determination of the proceedings.
We do not doubt that the Court has power in a proper case in s.79 proceedings to make what may be conveniently described as an interim order, that is an order dealing with some of the property of the parties prior to the final hearing. We do not consider that it is necessary to draw a distinction in terminology between an “interim” order and a “partial” order””.
Having regard to the wording of Section 5(2) of the Family Law Legislation (Amendment) Act 2000, I prefer to use the term “interim” to ensure that the benefit of the legislation is clearly available when it comes in to effect.

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate:

Date:

[2001] FMCAfam 231

1 November 2001