Bulow & Bulow

The appeal before the court involved the parties' superannuation interests, specifically in relation to a defined benefit interest held by the husband and an accumulation interest held by the wife. The trial judge had ordered that the parties’ superannuation interests be equalised and made a splitting order pursuant to section 90XT(1)(a) of the relevant legislation. The husband had appealed the decision, arguing that the trial judge had failed to consider the nature, form, and characteristics of the parties’ superannuation interests, the potential effect of the proposed splitting order, and the husband's direct financial contributions to his superannuation. The court found that the trial judge had indeed made errors in these respects, and that the appeal was therefore allowable. The case was remitted for rehearing before a different judge, with costs certificates to be provided.

The primary legal issues in this case were whether the trial judge had properly exercised the discretion to equalise the parties’ superannuation interests, and whether there was sufficient evidence to support the splitting order made by the trial judge. The court considered whether the trial judge had failed to take into account the defined benefit fund's trust deed, which would dictate the nature, form, and characteristics of the superannuation interests, and whether there was an obligation to seek evidence regarding matters plainly in issue and relevant. The court also considered whether the trial judge had failed to take into account direct financial contributions made by the husband to his superannuation, and whether there was appealable error as a result of these omissions.

In determining these issues, the court found that the trial judge had indeed made errors in failing to consider the defined benefit fund's trust deed and the potential effect of the proposed splitting order. The court also found that there was an obligation to seek evidence regarding matters plainly in issue and relevant, and that the trial judge had failed to take into account direct financial contributions made by the husband to his superannuation. These errors amounted to appealable error, and the appeal was therefore allowable. The case was remitted for rehearing before a different judge, with costs certificates to be provided.

The court also considered an application filed by the husband after the appeal hearing. The application was only relevant if the Full Court re-exercised the discretion, and the court found that it was not necessary to do so. The application was therefore dismissed.