Vinge and Vinge (No.2) - [2012] FMCAfam 144

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VINGE & VINGE (NO.2)

[2012] FMCAfam 144

FAMILY LAW – Implementation of superannuation splitting orders.

Family Law Act 1975

Applicant:

MS VINGE

Respondent:

MR VINGE

File Number:

ADC 1221 of 2010

Judgment of:

Kelly FM

Hearing date:

31 January 2012

Date of Last Submission:

31 January 2012

Delivered at:

Adelaide

Delivered on:

31 January 2012

REPRESENTATION

Counsel for the Applicant:

Ms K Annells

Solicitors for the Applicant:

DeGaris Lawyers

The Respondent:

In Person

ORDERS

The husband’s Application in a Case filed 23 January 2012 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Vinge & Vinge (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 1221 of 2010

MS VINGE

Applicant

And

MR VINGE

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally and have been collated from the full transcript including discussion between the bench and bar table during the course of the hearing. These reasons have been further edited and corrected to address any grammatical errors and generally to make my oral reasons easier to read.

This hearing has been listed urgently in response to the husband’s Application filed on 23 January 2012. Ms Annells, Counsel for the wife, confirms that she has received an unsealed copy of the husband’s Application and Affidavit.
The gist of the husband’s Application is that he hoped to achieve an outcome where his entitlement pursuant to a superannuation splitting order previously pronounced by the Court could be drawn from a different fund or funds, where the wife’s superannuation benefits are held on an unrestricted, non-preserved basis.
The legislative regime in relation to superannuation and to superannuation splitting orders is complex. I draw the parties’ attention to the Superannuation Industry Supervision Regulations and in particular Regulations 7A, 11, 12 and 13. The effect of these Regulations is that whenever a superannuation interest is split, the relevant superannuation fund is directed to give effect to the splitting order from a member spouse’s entitlements in the same proportion that they are held across the range of unrestricted non-preserved benefits, restricted non-preserved benefits and preserved benefits. This is a requirement imposed upon the superannuation fund by Regulation. It is not something the Court can necessarily direct the fund to do, or not to do.
Ms Annells confirmed that, of the five or six superannuation funds held in the wife’s name, some portions were held on an unrestricted and non-preserved basis and some were restricted and/or preserved funds. None of the smaller funds were sufficient to meet the husband’s entitlement pursuant to the proposed splitting order and the Court, in fact, directed that the splitting order apply to that fund which had sufficient balance to enable the superannuation splitting order to be given effect within the one fund. The order made by me was directed to the largest of the superannuation funds as that was the easiest way for the Court to structure the orders.
From the husband’s perspective, he is simply asking for his share “in cash” by which he means he receive the benefit of a splitting order applying to the wife’s superannuation interests that are held on an unrestricted non-preserved basis.
No submissions were made during the hearing as to what percentage of the wife’s entitlements within the various superannuation funds were unrestricted non-preserved benefits, restricted non-preserved benefits or preserved benefits. Ms Annells has reminded the Court that the various superannuation statements provided by her client would have set out the various “holdings” but to the best of the Court’s recollection, it was not an issue that was raised by either party during the course of the trial.
I remind the parties that the Government introduced the amendments to the Family Law Act 1975 enabling superannuation interests to be split as a way of ensuring that both parties were making proper provision for their long term financial security. That is one of the intended purposes of superannuation splitting orders. It is not to make funds immediately available to one party or the other.
Even if Mr Vinge had alerted the Court to the fact that a superannuation split structured in a different way against a range of the wife’s smaller superannuation funds would have enabled him to receive the benefit of a splitting order against unrestricted, non-preserved funds, he would still have had to convince the Court that this was in fact an appropriate outcome. To my mind, it would not necessarily match the legislative intent of the superannuation amendments.
I accept that the husband made it clear that he would like to receive as much of his entitlements in any property settlement order by way of cash or tangible assets. Mr Vinge referred me to paragraph 120 of my Reasons for Judgment where I acknowledged that was the husband’s preferred outcome. But with respect, I consider he is misinterpreting this paragraph. I was addressing the appropriate allocation of each party’s entitlements from the tangible asset pool and the implications of allocating the husband a larger share of the tangible asset pool and a smaller superannuation allocation, in terms of the wife having to then borrow a larger sum to give effect to a larger cash settlement in the husband’s favour.
At the time of pronouncing judgment, I structured the superannuation splitting order to apply to one superannuation fund only. I pronounced the order that I considered to be the easiest and neatest. If the order had certain implications that I was not alerted to during the trial, this does not provide a basis for me to revisit the order.
To the best of my recollection no-one put to me any proposal to structure the splitting order differently – that is, to apply across a range of the wife’s superannuation interests and none of the remaining superannuation holdings were of sufficient value to enable the splitting order to be drawn from one fund only.
Ms Annells has drawn my attention to her client’s Case Outline document tendered at trial which proposed a superannuation split directed to two of the smaller funds. This may have achieved part of the outcome the husband desired insofar as he would have received access to a portion of funds that were held on an unrestricted non‑preserved basis. However such an order would have involved the parties in further procedural requirements in giving effect to the superannuation splitting orders, two sets of fees applied from the relevant funds and so on.
Ms Annells also alerted the Court to a further difficulty with the husband’s Application which is that a copy of the Court orders were served upon the relevant superannuation fund in mid-November 2011 and the 28 day period within which the superannuation splitting order had to be implemented would well and truly have passed by now.
The husband maintains that there is in excess of $100,000 in unrestricted non-preserved entitlements within the wife’s various superannuation interests and that he should be able to obtain the benefit of those funds. That figure may well be correct, but that is not the issue.
The Court’s capacity to vary final orders pronounced is very limited. At the end of the day, I see no other possible outcome but that the order of the Court will stand. Even more so when, as Ms Annells suggests, the order has been put into effect by the relevant superannuation fund.
I concede that I have not previously been asked to consider the precise structure of the implementation of the superannuation splitting order and it is not a question that I was alert to during the hearing. I certainly appreciate the husband wanted to receive as much as possible of his entitlement by way of access to immediate, tangible assets. As I have said, I do not recall the effect of the superannuation split being a particular issue that was focussed on by either party in the course of the hearing. I do not recall any submissions about structuring any superannuation splitting order in such a way that it would apply to the wife’s superannuation benefits held on an unrestricted non-preserved basis.
If I am wrong in that regard, the husband has options open to him and if he is intent on doing so can pursue those matters through an appeal.

I dismiss the husband’s Application filed on 23 January 2012 noting that Application has not at today’s date been formally entered on to the Court file.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Kelly FM

Date: 2 March 2012