WILKINSON & KEMP

In the matter of *Wilkinson & Kemp*, Judge B Smith of the Family Court of Australia considered an application by Ms Wilkinson concerning property settlement and costs orders made against Mr Kemp. The primary orders, made on 29 April 2014, required Mr Kemp to pay Ms Wilkinson a sum of $45,352.42 for property settlement and $2,060.00 for costs. These payments were to be made within specified timeframes. However, Mr Kemp voluntarily entered bankruptcy before the payment deadlines expired. Ms Wilkinson subsequently sought a superannuation splitting order as an alternative to the monetary payments, which had not been made by the primary judge.

The court was required to determine whether it had the power to make a superannuation splitting order in light of Mr Kemp's bankruptcy and his prior default on the monetary orders. Specifically, the court considered the application of s 79A(1)(c) of the *Family Law Act 1975* (Cth), which allows for the variation of orders after default, and the court's duty to ascertain the rights of self-represented litigants. The court also examined the "machinery provisions" for amending orders and whether the court could effectively make an alternative order for superannuation splitting when the primary orders had not been complied with.

Judge B Smith reasoned that the court retained the power to make superannuation splitting orders even after the respondent's bankruptcy, particularly when the primary orders had not been satisfied. The judge found that Mr Kemp had not complied with the earlier orders for property settlement and costs. Consequently, the court invoked s 79A(1)(c) of the *Family Law Act 1975* to vary the original orders and give effect to the alternative superannuation splitting provisions. The court emphasised its obligation to ensure that parties' rights were ascertained and protected, especially in circumstances where one party had not complied with court directions.

The court ordered that the sum of $45,352.42 be allocated from Mr Kemp's interest in Superannuation Fund A to Ms Wilkinson, and that any splittable payment from that fund to Mr Kemp would be paid to Ms Wilkinson accordingly. Similarly, the costs order of $2,060.00 was also to be satisfied from Mr Kemp's interest in the same superannuation fund. These orders were to take effect from 19 September 2015 and 26 November 2015 respectively, and the trustee of Superannuation Fund A was bound by these orders. The Registrar of the Court was appointed to execute any necessary documents if Mr Kemp refused or neglected to do so.