The Family Court has the power to make final determinations on the assets of parties in the breakdown of a marriage. These powers are found under s 79 of the Family Law Act 1975 (Cth) (the “Act”) and is mirrored in s 90SM for parties in a de facto relationship.
It is intended that a Court order under ss79 and 90SM is “final” to resolve the parties’ dispute and property settlement proceedings.
But what happens when there is some property that have yet to be the subject of a final determination after s 79 orders have been made? Can you apply to the Court to revisit this issue and make an order?
The above issues were discussed and considered by the Court of Appeal in the case of Gabel v Yardley [2008] FamCAFC 162.
In this case, the wife approached the Court in 2007 seeking an alteration of her former husband’s superannuation interest well after final orders were made in 1999. The wife’s claim relied on the fact that amendments were made to the relevant legislation in respect of superannuation interests after the final orders being made. In response, the husband argued that final orders could not be subject to alteration as they were made on the basis that they were full and final.
In the first instance, the Court found that once an order is made under s79, those orders were final and cannot be made the subject of any alteration. On appeal, the Court considered whether the first instance Court had in fact exhausted and used all of its power under s 79 of the Act at the time final orders were made in 1999, or if there was further scope under that provision to alter the parties’ interests in property.
The Court of Appeal found that based on the specific circumstances arising in this matter relating to superannuation interests (which were affected by changes to the superannuation legislations introduced in 2002), the orders made by the Court under s79 in the first instance were merely interim. This is because those orders did not take into account all of the property then owned by each of the parties at the time they were made.
In coming to this decision, the Court of Appeal also had reference to the first instance judge’s “express adjournment of the proceedings” until such time the husband would become entitled to his superannuation entitlements. On this basis, the Court found that the Court could not complete its “single exercise of the s 79 power” until such entitlements were known.
If you have any concerns about what assets fall under s79 orders and require advice, contact our family lawyers today.