Getting the Orders sought right, particularly if you want them to be enforced, is always important but even more so when it comes to superannuation.  If a party seeks a split of superannuation then he/she must put the superannuation Trustee on notice, at least 28 days prior to any trial or the making of Orders.  As His Honour, Schonell J, opined on 14 November 2025, in Hidaka & Hidaka (No 6) [2025] FedCFamC1F 822, not doing so could mean that you end up with entirely unenforceable Orders.

In this matter at the end of the first day of the scheduled hearing the parties provided His Honour with a Minute of Consent Orders, including superannuation splitting orders.  No notice had been provided to the relevant superannuation Trustee.  It is noteworthy that the applicant husband was self-represented but the respondent wife was represented by both solicitor and counsel.

His Honour declined to make the superannuation splitting orders and directed the respondent’s legal representatives to provide the necessary notice to the trustee and adjourning the matter to the following day.  The proceedings where adjourned to Chambers and after two days a response had been received whereby the Trustee required changes to the proposed Orders.

His Honour was critical of the approach adopted by the wife as it was opposite the very clear authority in Jacobsson & Jacobsson [2025] FedCFamC1A 47.  In that case, as in the current case, the making of superannuation splitting Orders without affording the Trustee with procedural fairness may very well leave one of the parties in the position of being in possession of unenforceable Orders with serious ramifications.

Takeaway – the ramifications for not complying with the requirements of the Family Law Act can be serious and far reaching.  Orders made incorrectly and later found to be unenforceable would likely require the filing of an Application to set aside the previous Orders and substituting new Orders.  If that is not an agreed position it could translate to significant legal costs.