In Wilkinson & Kemp [2020] FCCA 69 (16 January 2020) Judge B Smith heard the wife’s enforcement application in respect of $47,912 owed to her under a property order and a costs order made in 2015. The husband declared himself bankrupt before the time for payment; and after being discharged from bankruptcy in August 2018 he declared bankruptcy again before the enforcement hearing in January 2019. The wife sought a variation of the order via a superannuation split in her favour for the amount outstanding. She relied on an email from the husband stating that he had moved assets offshore ([69]).
Noting ([40]) that the wife’s application which concerned unvested property (superannuation) did not affect the position of the Official Trustee, the court ([46]) cited Molier & Van Wyk [1980] FamCA 85 which held that a court exercising jurisdiction under the Act has power to amend its orders “to remedy a lacuna or gap…to give effect to the…orders” by means of a “machinery provision…without affecting the substantive rights of the parties”.
The court concluded ([75] [77]):
“The intention of the original orders was that the wife should receive a certain percentage of the total pool including superannuation. The orders made were ineffective because the husband had unilaterally removed the… majority of the non-superannuation assets from Australia prior to the primary hearing and then voluntarily entered bankruptcy.
“If no order is made the wife will suffer a substantial injustice. I am satisfied that it is both just and equitable and also necessary to make a superannuation splitting order by way of a machinery provision amendment.
“To ensure that there is no interference in the substantive rights of the parties the superannuation sums must be, as the wife seeks, in the sums originally ordered, and taking effect as at the date for payment of the original orders to give effect to the substance and intention of the primary order.”
Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume loose-leaf and online family law service (thefamilylawbook.com.au). He is assisted by Queensland lawyer Craig Nicol, who is a QLS Accredited Specialist (family law).
This story was originally published in Proctor April 2020.
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