Wooley and Kingston
[2007] FamCA 1509
•29 November 2007
FAMILY COURT OF AUSTRALIA
| WOOLEY & KINGSTON | [2007] FamCA 1509 |
| FAMILY LAW – PROPERTY – Variation of final orders made prior to legislation introducing splitting order – Notice to trustee – Power to make |
| Family Law Act 1975 (Cth) |
| APPLICANT WIFE: | Ms Wooley |
| RESPONDENT HUSBAND: | Mr Kingston |
| FILE NUMBER: | MLC | 12963 | of | 2007 |
| DATE DELIVERED: | 29 November 2007 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Justice Brown |
| HEARING DATE: | 29 November 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr. Davis |
| SOLICITOR FOR THE APPLICANT: | Waters Timms |
| SOLICITOR FOR THE RESPONDENT | No Appearance |
Orders
That service of this application and the supporting affidavit of Mr W sworn 29 November, 2007 on the husband be dispensed with.
That compliance with all necessary rules of the court including Rule 10.16 of the Family Law Rules2004, be dispensed with and all times abridged to enable this application to be heard forthwith and that the applicant serve a copy of this order on Australian Super Pty. Ltd., the trustee of Australian Super, as soon as practicable.
That the trustee of Australian Super not make any splittable payments in respect of the husband’s interest in the aforesaid superannuation fund, save payments to the wife pursuant to the splitting order contained in paragraph (4) of these orders.
That paragraphs (8) and (9) of the orders of Judicial Registrar Nikakis made on 20 October, 1999 be varied by substituting for such orders the following orders:
(8)Pursuant to s.90MT(1B) of the Family Law Act1975 (Cth) whenever a splittable payment becomes payable in respect of the husband’s interest in Australian Super, the wife’s legal representatives on behalf of the wife, then be paid 100% of such splittable payments and there be a corresponding reduction in the entitlement the husband would have received in the aforesaid superannuation fund but for this order.
(9)(a) The operative time for paragraph (8) of these orders in respect of the husband’s interest in Australian Super is four business days after service of the sealed order of the court on Australian Super Pty. Ltd., the trustee of Australian Super; and
(b)These orders bind the trustees of Australian Super to observe its obligations as trustee under the Act and the Family Law Superannuation Regulations 2001.
That until further order, the husband by himself, his employees, his servants and agents be and are hereby restrained from withdrawing, receiving or howsoever otherwise dealing, or attempting so to do, with his interest in Australian Super.
That until further order, the husband by himself, his employees, his servants and agents be and are hereby restrained from doing any act or thing which would prevent the wife, her heirs, executors, her administrators or nominees from receiving the benefits in Australian Super to which she is entitled pursuant to the orders of the court.
That each party and the trustee have liberty to apply to the court for such orders and directions as may be necessary for the implementation of the orders affecting the superannuation interests of the husband.
That there be liberty reserved to the trustee of Australian Super to apply within 28 days of service on it to set these orders aside.
That all extant applications be otherwise dismissed.
That these proceedings be removed from the List of matters awaiting finalisation.
That the reasons for judgment this day be transcribed and that copies be made available to the parties.
That the preparation of these orders be expedited forthwith.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
IT IS NOTED that publication of this judgment under the pseudonym Wooley & Kingston is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 12963 of 2007
| MS WOOLEY |
Applicant
And
| MR KINGSTON |
Respondent
REASONS FOR JUDGMENT
This matter comes before the court as an urgent application. By way of background, the parties married in February 1990 and separated in February 1999. They have one child, P, who is now 14. The mother has a daughter, M, from a previous relationship, who is now 22.
The wife issued proceedings in this court in 1999, seeking final property orders. That year the husband pleaded guilty in the County Court to sexual offences against M; he was subsequently sentenced to a term of imprisonment.
The husband was initially represented in the proceedings in this court but his solicitors withdrew later in 1999. Before and after their withdrawal, orders were made requiring the husband to file a defence and affidavits and to make financial disclosure. None of those orders was complied with. In due course, the case came before Judicial Registrar Nikakis. He heard the wife’s application on 20 October, 1999 despite the absence of the husband, an unsurprising course given that the husband had filed no response. Her application was thus not opposed.
The judicial registrar made final property orders on 20 October, 1999. Paragraphs (8) and (9) of those final orders are in these terms:
(8)That upon the husband attaining the age of 55 years, he shall within 21 days make application to the Australian Retirement Fund Pty. Ltd. for the release of all funds due to him and shall direct the Australian Retirement Fund to pay such funds (after deduction of all relevant taxes and charges) to the wife.
(9)That in order to secure the due performance by the husband of his obligations pursuant to paragraph (8) hereof, the husband is hereby restrained from dealing with or disposing of any entitlement he has under any superannuation fund with the Australian Retirement Fund Pty. Ltd.
These orders cast obligations on the husband, not the superannuation fund, and were within the power of the court.
On 19 September, 2007 the solicitors for the wife wrote to Australian Super (the successor of the Australian Retirement Fund Pty. Ltd.) in relation to the implementation of the orders of 20 October, 1999. In a letter dated 15 November, 2007, Mr. N, for Australian Super Administration, confirmed receipt of that correspondence. He advised that as the court order was made prior to the Family Law Legislation Amendment (Superannuation) Act2001, the court had no power to divide superannuation interests of the husband’s superannuation benefits. Offering further gratuitous legal advice, he advised that the value of a superannuation interest could be taken into account in determining the total property split, but the superannuation entitlement could not be split.
The orders made by Judicial Registrar Nikakis did not constitute a “split” under the legislation introduced two years later. Their effect was to provide for the whole of the husband’s superannuation entitlement to be paid to the wife, when it vested. The orders required the husband to act in certain ways and enjoined him from acting in other ways, orders within the then power of the court. Mr. N is, of course, right that a splitting order, as now understood, could not be made in 1999. He is not right if he believes the order made in 1999 was outside the court’s then power.
The wife has no knowledge of the husband’s whereabouts. The superannuation fund is unable to provide that information, being bound by privacy requirements.
I am satisfied that service on the husband should be dispensed with. He failed to comply with a series of orders which provided for him to serve material in the earlier litigation and the final orders made on 20 October, 1999 were made in his absence. He did not appeal that final determination.
What is sought is a variation of those orders, which I am satisfied amounts to a modification of what are, effectively, machinery provisions.
The court has power to modify the machinery provisions of a property order, provided substantive property rights are not affected and no undue hardship is caused to either party; McDonald & McDonald (1976) FLC 90-047. Application can be made for further orders necessary to give effect to the clear intention of the original orders; Molier & Van Wyk (1980) FLC 90-9111.
The modifications sought will have no effect whatsoever on the substantive property rights of the parties; they cannot cause prejudice to the husband. The intention of the 1999 orders was that the wife would have the sole benefit of the superannuation entitlements of the husband when they vested at age 55. They are about to vest as the husband turns 55 in the coming weeks. The court should vary the orders to ensure that the wife obtains the benefits found, some eight years ago, to be just and equitable.
I have considered whether a freezing order should be made today and formal notice given to the trustees, pursuant to the usual rules. The trustee was given notice today of this application and the application was foreshadowed in correspondence between the wife’s solicitors and the trustee, from 19 September this year. There were also telephone conversations between the wife’s solicitors and the family law officer at the trustee’s office, arising from that correspondence. In those circumstances I am satisfied that the orders should be varied to include a splitting order and the trustee should be enjoined from making any payments, save pursuant to that splitting order.
The parties and the trustee will have liberty to apply to obtain directions as to the implementation of the orders. Further, the trustee will have liberty to apply within 28 days of service of the orders on it to set the orders aside.
The solicitors for the wife should be commended for the expedition of this application.
I certify that the preceding 15 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Brown AM.
Associate
29 November 2007
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