Superannuation Left Untouched in a Property Settlement: Does a “Catch-All” Order Truly End the Financial Relationship Under the Family Law Act 1975 (Cth)?

Based on the authentic Australian judicial case [2003] FamCA 395 (Full Court of the Family Court of Australia, Appeal No EA18 of 2003; File No SYF5489 of 2002), this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds. :contentReference[oaicite:0]{index=0}

Chapter 1: Case Overview and Core Disputes

Basic Information

• Court of Hearing: Full Court of the Family Court of Australia (Sydney)
• Presiding Judge: Nicholson CJ, Ellis and O’Ryan JJ
• Cause of Action: Case stated in property settlement proceedings concerning superannuation and “catch-all” provisions in consent orders
• Judgment Date: 30 May 2003
• Core Keywords:
  • Keyword 1: Authentic Judgment Case
  • Keyword 2: Consent property orders
  • Keyword 3: Superannuation interests as property
  • Keyword 4: Section 79 “once and for all” principle
  • Keyword 5: Part VIIIB superannuation splitting regime
  • Keyword 6: Procedural fairness to trustees

Background

This matter arose from a common real-world problem after separation: parties often want consent orders that “tie up everything”, including an assurance that whatever each person currently holds will remain theirs. Here, the parties had reached agreement about a property settlement, and they wanted the Court to include a broad “catch-all” clause stating that each party is the sole legal and beneficial owner of all property in their possession or control, including superannuation. The practical aim was finality: no late-night second thoughts, no future disputes about overlooked items, and a clean end to the financial relationship.

What complicated the situation was that, although both parties had superannuation interests, they were not asking the Court to split superannuation under Part VIIIB. They also had not filed valuation evidence under the regulatory mechanism linked to section 90MT(2). A Deputy Registrar declined to make the proposed orders, and the matter reached the Full Court by way of a case stated, focusing on legal power and procedure rather than a factual contest.

Core Disputes and Claims

The real point of disagreement was not about who should receive what under the negotiated settlement. The disagreement was about legal architecture:

1. Whether the Court, when making consent property settlement orders, can include a broad “catch-all” clause that purports to confirm ownership of property and superannuation in each party’s possession or control.
2. Whether including superannuation in such a clause triggers mandatory requirements of Part VIIIB, including:
   • a formal determination of value under section 90MT(2), and
   • procedural fairness steps for the trustee under section 90MZD.
3. Whether a “zero split” approach exists, meaning a splitting order that gives 0 per cent to the non-member spouse simply to satisfy the superannuation regime while leaving the interest untouched.
4. Whether registrars can exercise the relevant jurisdiction in making such consent orders.

The practical relief sought by the parties was the inclusion of a broad finalising clause in the consent orders, so that each party could keep what they had, including their own superannuation, without the cost and procedural burden of formal valuation and trustee involvement where no superannuation split was intended.

Chapter 2: Origin of the Case

This was a relationship breakdown followed by a negotiated property settlement. The parties married in September 1992 and separated in November 2001. They had two children, with parenting arrangements made for the children to live with the Wife and to have extensive contact with the Husband. Both parties were employed, earning moderate incomes, and child support was being paid.

The economic story was typical of many families: one party earned more over time, the other carried greater homemaker and parenting responsibilities, and both were steadily accumulating assets and liabilities during the relationship. After separation, they negotiated how to divide the net proceeds of sale of the former matrimonial home, the vehicle, and various items of personal property.

The settlement took shape as a set of “partial property orders” that allocated the bulk of assets: approximately AUD $104,000 net to the Husband and AUD $174,000 net to the Wife. The unresolved anxiety was not the house proceeds or the car. It was the fear of loose ends.

A “catch-all” clause is the legal equivalent of checking the house one last time before locking the door: people want to be confident nothing has been left behind. The parties therefore sought a clause stating that each would be the sole legal and beneficial owner of all property, including superannuation, in their possession or control.

The decisive procedural moment occurred when a Deputy Registrar declined to make the proposed final orders. That refusal forced a legal question: is a reassuring “catch-all” clause actually lawful, and if it mentions superannuation, does it accidentally trigger an entire regulatory scheme?

Chapter 3: Key Evidence and Core Disputes

Applicant’s Main Evidence and Arguments

In the Full Court, there was no applicant in the usual adversarial sense because the matter proceeded as a case stated. However, the party advocating for the inclusion of the “catch-all” provision advanced these key points:

• Consent orders should be able to deliver finality consistent with section 81 of the Family Law Act 1975 (Cth), which encourages orders that finally determine the financial relationship.
• The “catch-all” clause is a practical tool used for decades to prevent later disputes about personal chattels or overlooked items.
• Including superannuation in a “catch-all” clause does not mean a split is sought. It simply means each party retains their own superannuation as part of the overall settlement structure.
• Requiring a formal determination under section 90MT(2) where no splitting order is sought would impose unnecessary expense and complexity.

Respondent’s Main Evidence and Arguments

The opposing position, advanced through submissions supporting a strict reading of the superannuation regime, contended:

• Superannuation is now treated as property for the purposes of section 79, but if the Court makes an order “in relation to” a superannuation interest, then Part VIIIB controls the process.
• If an order touches superannuation, it might need to be characterised as a splitting order under section 90MT, even if the intended split is zero.
• If so, a valuation determination under section 90MT(2) might become mandatory, and trustee procedural fairness might be required if the trustee is to be affected.

Core Dispute Points

1. What is the true legal character of a “catch-all” clause placed inside section 79 consent orders: a declaration under section 78, or a component of a section 79 alteration of property interests?
2. Does mentioning superannuation in such a clause create an “order in relation to superannuation interests” that engages Part VIIIB compliance steps?
3. Can the law accommodate a “zero split” splitting order, and if not, how can the Court permit finality language about superannuation without forcing a split mechanism?
4. If no splitting order is sought, do section 90MT(2) valuation and section 90MZD procedural fairness requirements apply at all?

Chapter 4: Statements in Affidavits

In a typical property settlement dispute, affidavits are the engine room: each party frames the financial narrative, exhibits documents, and tries to persuade the Court on contributions and future needs. Here, the case stated procedure changed the dynamic. The “evidence” was largely a structured list of agreed facts: dates of marriage and separation, incomes, the existence of superannuation accounts with approximate balances, and the fact that the parties had not filed valuation evidence in the form contemplated by section 90MT(2).

This absence of contested affidavit evidence was strategically important. It meant the Court was not deciding whose version of events was credible. The Court was deciding what legal machinery must be engaged when parties present a settlement that includes superannuation language but does not seek a split.

Even so, the affidavit concept still matters for practitioners, because the Court’s reasoning highlights a strategic boundary:

• If parties seek a superannuation splitting order, evidence sufficient to permit the Court’s determination under section 90MT(2) is required.
• If parties do not seek a splitting order, then the Court is not compelled to undertake a valuation determination under section 90MT(2) merely to allow finality language.

Strategic intent behind procedural directions becomes clearer through this lens: the Court’s procedural caution was aimed at preventing “accidental” engagement of trustee obligations and valuation requirements where the settlement does not truly require them.

Chapter 5: Court Orders

Prior to the Full Court’s determination of the case stated questions, the Court had made partial property orders by consent, which included:

• Directions for distribution of proceeds of sale of the former matrimonial home held in trust, with specified payments in a clear priority sequence.
• Transfer of a motor vehicle from the Husband to the Wife with associated indemnities.
• Delivery of specified personal items.
• Ancillary implementation provisions including execution of documents and an appointment power under section 106A if a party refused to sign.

Crucially, the judicial officer declined to include the proposed paragraph that purported to “declare” each party the sole legal and beneficial owner of all property and superannuation in their possession or control, and that refusal triggered the case stated.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

This hearing was not a theatre of cross-examination. It was a legal showdown: statutory text, legislative purpose, and the Court’s concern to keep consent order practice workable without distorting the superannuation reforms.

Process Reconstruction: Live Restoration

The Court’s analysis progressed in a disciplined sequence:

1. Identify the true source of power: section 79 (alteration of property interests) versus section 78 (declarations of existing title).
2. Clarify the nature of a “catch-all” clause in a section 79 order: whether it changes rights, confirms rights, or both depending on the property’s nature and formalities required for transfer.
3. Determine whether a “catch-all” clause dealing with superannuation is, in substance, a splitting order, a flagging order, or neither.
4. Decide whether the mandatory machinery of Part VIIIB is only triggered when a splitting or flagging order is actually sought or made.

Core Evidence Confrontation

The decisive “evidence” was statutory:

• Section 79 establishes the Court’s power to alter property interests and carries the “just and equitable” threshold.
• Part VIIIB establishes a framework allowing superannuation splitting, with section 90MA stating the object: allocation of splittable payments.
• Section 90MS makes clear that, in section 79 proceedings, the Court may also make orders in relation to superannuation interests in accordance with the Division, and cannot make an order under section 79 in relation to a superannuation interest except in accordance with Part VIIIB.
• Section 90MT defines the kinds of splitting orders and requires a determination under section 90MT(2) before making such an order.
• Section 90MZD requires procedural fairness to the trustee if an order is expressed to bind the trustee.

The legal confrontation was over characterisation: does a clause that leaves superannuation where it is nevertheless become an “order in relation to superannuation interests” such that valuation and trustee fairness are mandatory?

Judicial Reasoning

The Court held that the “catch-all” clause, despite its declaratory language, can validly appear within a section 79 order because it can, in certain contexts, alter interests in personal property in possession, and in other contexts it can operate as part of a single overall section 79 order even where it merely confirms existing positions.

The Court also rejected the idea that merely including superannuation in a “catch-all” clause necessarily turns it into a splitting order or requires the machinery of Part VIIIB.

“A provision such as paragraph 5 of the Terms of Settlement does not split anything and is not a flagging order.”

This statement was determinative because it draws a hard boundary between language that finalises ownership between the parties and a true Part VIIIB order that allocates splittable payments. If nothing is being allocated and no trustee is being bound, then the costly procedural burdens of valuation and trustee fairness are not mandatory.

The Court further rejected the “zero split” concept.

“In conclusion, we do not accept that there can be a zero per cent splitting order.”

That rejection mattered because it prevented practice from drifting into artificial compliance: parties should not be forced to create meaningless superannuation splitting orders simply to allow a finality clause.

Chapter 7: Final Judgment of the Court

The Full Court answered the questions of law in a way that validated practical consent order practice while preserving the integrity of the superannuation splitting regime. In substance, the Court determined:

• The Court has power under section 79, particularly with the support of section 80, to include a “catch-all” type provision within a section 79 order concerning property.
• A “catch-all” provision in a section 79 order may include superannuation interests, but if no superannuation split is sought, the mandatory Part VIIIB obligations concerning valuation and trustee procedural fairness do not apply.
• It is not necessary to make a determination under section 90MT(2) where no splitting order under section 90MT(1) is sought or made.
• The Court does not need to be satisfied that trustees have been accorded procedural fairness if the relevant provision does not bind or affect trustees.
• Registrars can exercise the relevant jurisdiction in making such consent property settlement orders.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis

This decision is a practical bridge between old consent order habits and the then-new superannuation splitting reforms. The Court was alert to a basic risk: if every mention of superannuation in a finality clause automatically triggered Part VIIIB machinery, consent order practice would become slower, more expensive, and less accessible, even where superannuation was not being split.

The jurisprudential value lies in two clarifications:

1. The Court’s insistence that substance prevails over labels. A clause described as a “declaration” may actually function as part of a section 79 alteration order.
2. The Court’s refusal to allow formalism to distort purpose. Part VIIIB exists to allocate splittable payments, not to generate administrative paperwork where nothing is being split.

Judgment Points

1. A section 79 order is a single “once and for all” exercise of power
   • The Court reaffirmed that property settlement under section 79 is not a series of isolated mini-orders; it is one exercise that exhausts power except through section 79A.
   • This principle makes “finality language” understandable: parties seek reassurance because section 79 aims at a clean end, not rolling disputes.
2. A “catch-all” clause can genuinely alter property interests in chattels
   • Where personal property is jointly owned but held by one party, a “catch-all” clause can operate to transfer the other party’s interest to the possessor without further formalities.
   • Practically, this prevents future disputes over household items, personal effects, and other chattels where documentary title is unclear.
3. The Court discouraged the misleading use of “declared”
   • The Court considered that describing the clause as a declaration can confuse the power source, and suggested it is better framed as a section 79 alteration provision.
   • The message for practitioners is drafting clarity: describe the clause in a way that matches section 79’s character.
4. Superannuation can be included in section 79 orders without automatically invoking Part VIIIB
   • The Court accepted that a “catch-all” clause may mention superannuation.
   • The legal question is not whether superannuation is mentioned, but whether a splitting or flagging order is being made.
5. No mandatory valuation determination under section 90MT(2) without a splitting order
   • The Court held the section 90MT(2) determination obligation is triggered before making a section 90MT(1) splitting order, not before making an overall section 79 settlement that leaves superannuation untouched.
6. No trustee procedural fairness requirement where the trustee is not bound
   • Section 90MZD is directed to orders expressed to bind trustees.
   • If the order does not bind or affect the trustee, procedural fairness steps are not mandatory.
7. “Zero split” orders are not contemplated
   • The Court rejected an argument that the words “if any” in section 90MT(1) permit a base amount or percentage of nil.
   • This preserves the scheme’s meaning: splitting orders are for actual allocation, not symbolic compliance.
8. A practical reading of “in accordance with this Part”
   • The Court accepted an interpretive approach that “in accordance with” can operate as “not inconsistent with” where the Part is applicable.
   • This avoids turning the Act into a trap where benign finality language triggers unnecessary formalities.

Legal Basis

The Court’s reasoning was anchored in the interaction between these key provisions:

• Section 79 of the Family Law Act 1975 (Cth): power to make orders altering property interests where just and equitable.
• Section 80 of the Family Law Act 1975 (Cth): incidental powers supporting the effective exercise of section 79, including consent orders and orders necessary to do justice.
• Section 81 of the Family Law Act 1975 (Cth): the statutory aim, so far as practicable, of finally determining the financial relationship.
• Part VIIIB, including:
  • Section 90MA: object of the Part, enabling allocation of splittable payments.
  • Section 90MS: optional nature of making superannuation orders in section 79 proceedings, and the constraint that true superannuation orders must comply with the Part.
  • Section 90MT: splitting orders and the prerequisite determination under section 90MT(2) before making such orders.
  • Section 90MZD: procedural fairness requirement if the trustee is to be bound.

Evidence Chain

Victory in this case turned on a clean, disciplined chain:

1. Identify the true nature of the clause: it is part of section 79 consent orders, not a free-standing section 78 declaration.
2. Ask whether any superannuation allocation is being made.
3. If no allocation is being made, the clause is not a splitting order under section 90MT(1).
4. If it is not a splitting order, the mandatory prerequisites of section 90MT(2) do not apply.
5. If the trustee is not bound, section 90MZD procedural fairness steps are not mandatory.
6. Therefore, consent orders can include finality language mentioning superannuation without forcing unnecessary valuation and trustee processes.

Judicial Original Quotation

“If the superannuation interest is not to be altered in accordance with section 90MT(1) … the mandatory obligations under Part VIIIB … do not apply.”

This passage matters because it captures the Court’s core doctrinal line: the superannuation regime is mandatory only when its operative mechanisms are being used. It protects both parties and practitioners from accidental complexity.

“Courts are loath to make [orders] without any practical effect.”

This is determinative because it supports the rejection of zero-split orders. The Court refused to convert the superannuation regime into a paperwork exercise.

Analysis of the Losing Party’s Failure

The losing logic failed because it relied on formalistic characterisation rather than substance:

• It treated any reference to superannuation in consent orders as necessarily an “order in relation to” superannuation interests requiring Part VIIIB compliance.
• It attempted to force that compliance through a fictional device: a “zero split” order.
• The Court held that such an approach misreads both the object of Part VIIIB and the structure of section 90MT.
• It also would have imposed needless administrative burdens on trustees in circumstances where the trustee’s position is unaffected.

Key to Victory

The successful pathway was not a factual triumph but an interpretive and drafting triumph:

• Characterise the settlement properly as a section 79 outcome.
• Treat a “catch-all” clause as a practical tool for finality and chattel ownership resolution.
• Maintain a bright-line rule: Part VIIIB compliance obligations arise when a splitting or flagging order is sought or made, not merely because superannuation is mentioned.

Reference to Comparable Authorities

• Harris v Caladine (1991) FLC 92-217
  Ratio summary: In consent order contexts where parties are legally represented and acting at arm’s length, the Court’s focus is on bona fides of consent, legal advice, and consideration of statutory context, rather than conducting a quasi-trial of every discretionary factor.

• Walker v Wilson (1991) 99 ALR 1
  Ratio summary: The decision supports the interpretive point that “in accordance with” can, in some statutory contexts, mean “not inconsistent with”, assisting practical construction where strict literalism would produce unworkable outcomes.

• Crown and Yarnold [2003] FamCA 152
  Ratio summary: Considered the “measuring stick” argument about superannuation and property adjustment; this Full Court decision declined to adopt that approach to the extent it would treat non-splitting adjustments as orders in relation to superannuation triggering Part VIIIB prerequisites.

• Mullane v Mullane (1983) FLC 91-303
  Ratio summary: Reaffirmed that section 79 orders are “once and for all” exercises of power, with limited set-aside jurisdiction under section 79A in special circumstances such as fraud, duress, suppression of evidence, or false evidence.

• Branchflower and Branchflower (1980) FLC 90-857
  Ratio summary: Reinforced the spent power principle: after a section 79 order, the Court’s power to make further property orders is exhausted except via section 79A.

• Slapp and Slapp (1989) FLC 92-022
  Ratio summary: Confirmed that substantive variation of section 79 orders is not open except on appeal or under section 79A, entrenching finality.

Implications

1. Finality in family law is not just emotional closure; it is a structural feature of section 79. A well-drafted consent order aims to prevent future conflict by making the end legally meaningful, not merely hopeful.
2. Superannuation is serious property, but the law does not demand expensive procedures in every case. Where no split is sought, the system should not force parties into technical rituals that add cost without benefit.
3. A “catch-all” clause is not magic, but it can be powerful for personal property in possession. It can reduce the risk of later disputes over chattels and overlooked items, especially where ownership is informal or shared.
4. Drafting matters. Words like “declared” can invite confusion about whether the clause is a section 78 declaration or part of section 79 alteration. Clear drafting protects the settlement from procedural derailment.
5. Trustee involvement is not automatic. The law is sensitive to the trustee’s role, but it does not impose procedural fairness requirements where the trustee is not being bound or practically affected.

Q&A Session

1. If our property orders divide everything except superannuation, can the other party come back later and claim a share of my superannuation?
   If the matter has been resolved by a section 79 order intended to finally determine the financial relationship, the Court’s power is generally spent except through section 79A. However, risks can be relatively higher if there was non-disclosure, misleading valuation, fraud, or other circumstances within section 79A that could justify setting aside or variation. The safer course is careful disclosure and clear drafting that addresses superannuation treatment in the settlement structure.

2. Do we always need a formal superannuation valuation under the Regulations?
   Not always. This case supports the position that a determination under section 90MT(2) is mandatory before making a splitting order under section 90MT(1), but where no split is sought and superannuation is left untouched, parties may rely on agreed values depending on the circumstances. Risk can be relatively higher where the interest is complex, such as defined benefit schemes, or where parties are self-represented.

3. Can we include a clause saying each party keeps their own superannuation without involving the superannuation fund trustee?
   Generally, where no splitting order is sought and the trustee is not to be bound, the trustee procedural fairness requirements under section 90MZD are not mandatory. If, however, a split is sought, trustee notice and compliance becomes critical because the trustee’s administrative obligations and legal position are directly affected.

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

• Case Subtype: Civil Litigation and Dispute Resolution within Family Law property settlement practice, focusing on consent orders, “catch-all” clauses, and superannuation treatment under Part VIIIB
• Judgment Nature Definition: Final judgment (Full Court determination on a case stated)

2. Self-examination of Core Statutory Elements

Execution Standard

The following standards are for reference only. Outcomes tend to be determined by the interaction of evidence, disclosure quality, the structure of orders, and whether statutory preconditions are engaged. The tests below must be applied to the specific facts of any given matter, and risk assessments should remain non-absolute.

Applicable Category: ⑨ Civil Litigation and Dispute Resolution

Core Test Standard 1: Limitation and Finality Architecture in Property Proceedings

• Identify whether the property settlement is being pursued under section 79.
• Confirm whether a final section 79 order has been made.
• If a final order exists, assess whether the Court’s power is spent, subject to section 79A.
• Self-check risk factors that tend to elevate vulnerability to later challenge:
  • Incomplete disclosure of assets or liabilities
  • Material misstatements about values
  • Evidence of duress, undue pressure, or procedural unfairness
  • False evidence or suppression of evidence
• Apply the “once and for all” principle as a structural checkpoint: if final orders were made, any later attempt to re-open tends to require section 79A pathways.

Core Test Standard 2: Jurisdiction and Proper Power Source for Ownership Language

• Determine whether the clause is intended as:
  • a section 78 declaration of existing rights, or
  • a component of a section 79 alteration of property interests.
• For consent property settlement orders, ensure the drafting is consistent with section 79 as the principal power, with section 80 supporting incidental powers.
• Self-check whether the clause actually alters interests:
  • For chattels in possession, a “catch-all” clause may operate to alter interests by assigning the other party’s interest to the possessor.
  • For property requiring formal transfer steps, a clause that imposes no in personam obligations may be ineffective, creating enforcement and implementation risk.

Core Test Standard 3: Superannuation Trigger Analysis Under Part VIIIB

• Step 1: Identify whether the parties are seeking a splitting order under section 90MT(1) or a flagging order under the relevant Part VIIIB provisions.
• Step 2: If a splitting order is sought:
  • The Court must make a determination under section 90MT(2), either by regulatory method or by a method the Court considers appropriate where regulations do not apply.
  • Consider whether the trustee must be bound, and if so, ensure procedural fairness requirements under section 90MZD are satisfied.
• Step 3: If no splitting or flagging order is sought:
  • A settlement clause may still mention superannuation as part of the overall finality language.
  • The section 90MT(2) determination tends not to be mandatory merely because superannuation is referenced, provided no allocation of splittable payments is ordered.
  • Trustee procedural fairness tends not to be mandatory where the trustee is not bound or affected.

Core Test Standard 4: Disclosure and Evidence Sufficiency for Consent Orders

• Confirm each party has made full and frank disclosure of assets, liabilities, and superannuation interests.
• Where parties agree on value, document the basis for agreement.
• Identify circumstances where additional evidence tends to be prudent, even if not strictly mandated:
  • Complex superannuation structures
  • Defined benefit interests
  • Self-represented parties
  • Significant disparity in financial knowledge or bargaining power

3. Equitable Remedies and Alternative Claims

Promissory and Proprietary Estoppel

Where statutory framing does not fully address fairness concerns, parties sometimes explore equitable principles, particularly where one party claims reliance on promises about property or retirement entitlements:

• Did the other party make a clear and unequivocal promise or representation about retirement outcomes or property retention, such as assurances that a particular asset or benefit would be shared later?
• Did the relying party act to their detriment, such as by foregoing employment opportunities, funding family expenses disproportionately, or accepting a lesser property share on the understanding superannuation would remain untouched?
• Would it be unconscionable for the promisor to resile from that representation?

Practical note: These pathways can face relatively high risk in family law contexts because section 79 and binding orders tend to dominate the field, and equity arguments often struggle against the finality principle unless linked to recognised setting-aside grounds or clear unconscionable conduct.

Unjust Enrichment and Constructive Trust

Where one party claims the other retained a benefit without proper basis:

• Has the other party received a benefit at the claimant’s expense, such as retention of property acquired through the claimant’s funds or labour?
• Is it against conscience for the recipient to retain the benefit without accounting?
• Would a constructive trust or equitable account be a feasible remedy?

Practical note: In property settlements, these arguments can be used as an explanatory framework, but the Court’s section 79 discretion often provides the primary corrective mechanism.

Procedural Fairness and Decision-making Integrity

Even in consent order contexts:

• Were both parties properly advised?
• Was there genuine consent without duress?
• Was the Court satisfied of bona fides and statutory awareness consistent with authority on registrar-made consent orders?

If these elements are absent, a later challenge may carry relatively higher prospects under section 79A style grounds, depending on proof.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds

• Section 79 finality threshold: once final property orders are made, further property orders tend to be barred unless section 79A applies.
• Section 79A exceptional gateway: fraud, duress, suppression of evidence, false evidence, or other miscarriage of justice circumstances.
• Superannuation splitting threshold: if a splitting order under section 90MT(1) is sought, a valuation determination under section 90MT(2) becomes mandatory.

Exceptional Channels

• If the parties later discover an asset was concealed or misrepresented, section 79A may provide a pathway to set aside or vary orders, subject to proof and discretion.
• If a party was pressured into consent without real understanding, duress or unconscionable conduct arguments may support section 79A relief, though risk remains fact-sensitive and non-absolute.
• If superannuation was left untouched but materially used as a balancing factor in the distribution of other property, careful records reduce later disputes about what was agreed and why.

Suggestion

Do not abandon a potential challenge or a defence position simply because orders already exist. Instead, compare the facts against section 79A gateways with realism. Many disputes fail because they rely on regret rather than proof of a recognised miscarriage of justice.

5. Guidelines for Judicial and Legal Citation

Citation Angle

This authority is useful where submissions concern:

• whether a “catch-all” clause in section 79 consent orders can validly confirm or alter ownership of property in possession,
• whether superannuation references in consent orders trigger Part VIIIB valuation and trustee procedural steps,
• whether “zero split” splitting orders are contemplated, and
• how registrar-made consent orders should be approached where parties are legally represented.

Citation Method

• As Positive Support: Where your matter involves a negotiated settlement intending to leave each party’s superannuation untouched, this authority can support the proposition that Part VIIIB valuation and trustee procedural fairness requirements are not mandatory absent a splitting or flagging order.
• As a Distinguishing Reference: If the opposing party argues Part VIIIB must apply whenever superannuation is mentioned, emphasise the absence of any allocation of splittable payments, and that the clause is not expressed to bind trustees.

Anonymisation Rule

When discussing facts, do not use real names of the parties. Use procedural titles such as Husband and Wife, or Applicant and Respondent, consistent with the judgment’s framing.

Conclusion

This decision demonstrates that finality in property settlements is achieved through substance, not ritual. A “catch-all” clause can be a legitimate tool of closure within section 79 orders, and mentioning superannuation does not automatically trigger Part VIIIB burdens where no split is sought. The law’s message is practical and humane: final orders should be workable, fair, and genuinely final, without unnecessary procedural cost.

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Federal Circuit and Family Court of Australia ([2003] FamCA 395), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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