YUSUF & BURTON

[2012] FamCA 580

FAMILY COURT OF AUSTRALIA

YUSUF & BURTON [2012] FamCA 580

FAMILY LAW – PROPERTY SETTLEMENT – Superannuation splitting order - Order previously made not in proper form in accordance with amendments – Previous order struck down – Matter stood over to allow for procedural fairness in relation to notice to the trustees of the super fund – Fresh order made in compliance with section 90MT of the Family Law Act 1975 (Cth)

FAMILY LAW – PRACTICE AND PROCEDURE - Amendment under slip-rule

Family Law Act 1975 (Cth)

APPLICANT: MsYusuf

RESPONDENT: Mr Burton

FILE NUMBER: PAC 5769 of 2007

DATE DELIVERED: 9 May 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 19 March, 2 April, 5 April, 9 May 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Jurd as agent

Hal Ginges & Co

SOLICITOR FOR THE RESPONDENT: No appearance by husband in person

Orders

1. That leave is granted to the Applicant Wife’s solicitor to file in Court this day an Affidavit by Mr G sworn 9 May 2012.

2. That an order be made in accordance with Annexure D to the Affidavit of Mr G filed in these proceedings this day.

3. That a copy of that order be forwarded to the Court for execution and issue at the earliest opportunity.

4. That pursuant to the Slip Rule, Orders of 5 April 2012 being particularly Order 3 of that day, be amended to reflect the date of birth of the child R as … March 2003 in lieu of … February 2003. An amended order to that effect is to issue forthwith. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yusuf & Burton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5769 of 2007

Ms Yusuf

Applicant

And

Mr Burton

Respondent

REASONS FOR JUDGMENT

Introduction & Background

1. On 20 August 2008, Orders were made by consent in this matter.  Order 3 of those Orders deals with a superannuation fund of the husband’s.  The Order was made in these terms:-

   3. The Wife forthwith be declared the sole beneficial owner of any and all funds held on behalf of both parties with any superannuation fund;

   I am of the view that that Order should not have been made at the time it was.  On 20 August 2008, the scheme of the Family Law Act 1975 (Cth) provided specifically for the manner in which splitting orders were to be made. Relevant sections, and particularly section 90MT of the Act, had been inserted by amendments which came into force on the 28 December 2002.

2. However, the Orders to which I have already referred were made.

3. The wife then sought to have Order 3 of those Orders carried into effect by the trustees of the appropriate superannuation fund, that is to say “First State Super”.  Not surprisingly, the trustees of First State Super refused to comply with the Order in its then form.

4. An application was then made to this Court on 2 February 2012 seeking that the Court declare the relevant Order made on 20 August 2008 to be a superannuation splitting order pursuant to section 90MT of the Act. Again, not surprisingly, that order was not made.

5. On 2 April 2012, at the Court’s insistence, an Amended Application was made setting out with some precision an order that was to affect the husband’s interest in First State Super.  Notice of that order was then given to the trustees of the fund and subsequently, they entered into correspondence with the solicitor for the wife and a further form of order was apparently agreed upon.  That order is to be found as annexure D to the affidavit of Mr G filed in Court today, having been sworn on 9 May 2012.

6. It is clear that parties cannot by consent change earlier superannuation orders so as to come within the umbrella of the new part of the Act dealing with superannuation. However, in the circumstances of this case, I am prepared to find that, pursuant to the provisions of subsection 79A(1)(b) of the Act that Order 3 of the 20 August 2008 is impracticable and unable to be carried into effect. The Order ought never have been made in the form that it was having regard to the existence of section 90MT of the Act, setting out clearly the requirements to be met for a splitting order to be made.

Determination & Conclusion

1. I am thus able to find that Order 3 of the 20 August 2008 was impracticable and therefore, pursuant to the provisions of section 79A(1)(b), I strike that Order down.  I am satisfied that proper notice has been given to the trustees and, indeed, the trustees have indicated they have no objection to orders being made in accordance with annexure D to Mr G’s affidavit.  Accordingly, I propose to order that an order will be made in accordance with annexure D to the affidavit of Mr G and I will require a copy of those orders to be forwarded to the Court for execution.

2. I have also been requested to make an amendment by Slip Rule as to the date of birth of a child and I will do so.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 9 May 2012.

Legal Associate:      

Date:    24 July 2012