C & C (No. 2)

[2005] FamCA 1223

[2005] FamCA 1223

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

BETWEEN  No. SY.4174 of 2002

C

Applicant/Wife

and

C

Respondent/Husband

(No. 2)

CORAM:  The Hon. Justice John STEELE

DATE OF HEARING:  28 & 29 November 2005

DATE OF JUDGMENT:                19 December 2005

JUDGMENT

Appearances:

Mr Fosterof Counsel - instructed by Watts McCray Lawyers appeared on behalf of the Applicant Wife.

Mr TwiggSolicitor of Adrian Twigg and Co appeared on behalf of the Respondent Husband.

CATCHWORDS:

FAMILY LAW – PROPERTY – SUPERANNUATION – Rehearing – Treatment and calculation of superannuation entitlements – Approach taken was to provide for two separate asset pools (general asset pool and superannuation pool) then assess the contribution based entitlement of each of the parties to each separate pool, combine the figures to come to a figure for the overall contribution based entitlement of the parties and then evaluate the terms and conditions applying to the respective superannuation entitlements in considering the adjustment (if any) to be made for s.75(2) factors.

Family Law Act 1975 (Cth)

C and C (2005) 33 Fam LR 414
Perrett v Perrett (1990) FLC 92-101

1. These are proceedings for property settlement brought following the breakdown of a marriage of just under ten years duration when the parties separated under the one roof in February 2001.  Final separation did not occur until October 2002 when the Wife left the former matrimonial home.

2. The matter was previously heard for three days in November 2003 but an Appeal was upheld by the Full Court on 2 June this year (C and C (2005) 33 Fam LR 414).  The focus of the Appeal was the treatment of the parties’ respective superannuation entitlements and that remains the main issue of contention.

3. The Wife has a superannuation entitlement (not yet accessible) which has been valued in accordance with the regulations in the sum of $102,326.  The Husband’s superannuation entitlement was paid to him following redundancy with the Commonwealth Public Service in December 2001.  He received his superannuation in two parts, a lump sum of $66,954 and a pension as a consequence of the commutation of the sum of $161,590 resulting in the right to receive fortnightly payments of $452.23 indexed for the rest of his life.  That entitlement is valued in accordance with the regulations in the sum of $250,205.  Neither party seeks a splitting Order.

4. The Wife seeks a distribution of property as to 60/40 in her favour whereas the Husband seeks to have Orders made which would effect a distribution in the proportion of 56/44 to him.  Both those figures assume a global assessment.  It should be recorded that neither party contends that the assessment should be made on a global basis.  The Husband contends the contribution based entitlement should favour him 55/45 with an adjustment of 11% to him for Section 75(2) factors.  The Wife contends there should be no Section 75(2) adjustment.

5. The parties have put forward a document entitled “Agreed Chronology for Rehearing” which is Exhibit 2 and contains a range of agreed facts.  This was done so as to avoid the need for the transcript of the prior hearing to be put in evidence though there have been occasions where Counsel has relied upon the transcript for the purposes of cross examination.  The parties have agreed I should not read the transcript of the prior trial.  The Exhibits in the first trial have together been tendered as one Exhibit being Exhibit “A” and the number of those Exhibits if relevant will be referred to as e.g. Exhibit “A13” where the individual Exhibit was Exhibit 13 in the first trial.

Short History

6. The Wife was born in December 1955 and is now forty-nine years of age.  She was formerly a manager with the Commonwealth Public Service but was made redundant and later reemployed and currently earns $58,380 per annum.  She is in full time employment with the public service but does not have a position allocated to her at the present time.

7. The Husband was born in September 1955 and is now fifty years of age.  He was made redundant by the Commonwealth Public Service in December 2001 and has been unemployed since.  Before being made redundant he was the personal assistant to the managing director.

8. The parties commenced cohabitation in the mid to late 1980’s.  The Husband contends it was 1986 and the Wife says it was late 1987 or early 1988 but they then separated in 1988 and they remained separated until they married in 1991.  They were married in March 1991 and separated under the one roof in February 2001.  Final separation occurred when the Wife left the former matrimonial home in October 2002.  The parties are agreed that the earlier cohabitation and separations should be ignored and the parties contributions be treated as commencing at the time of marriage.

9. There were no children of the marriage although the Husband had two children from his prior marriage, a daughter born in February 1976 who was fifteen at marriage and a son who was born in June 1978 and was approaching thirteen at marriage who spent time at the matrimonial home mostly on alternate weekends.

The Law to be Applied

10. The approach to be taken is set out in Section 79 of the Act. Section 79(2) provides that the Court shall not make an order under the section unless it is satisfied that in all the circumstances, it is just and equitable to make the order. I am required in considering what order should be made to take into account the respective contributions of the parties referred to in Section 79(4)(a)(b) and (c). I am required to take into account in addition the effect of any proposed order upon the earning capacity of the parties pursuant to Section 79 (4)(d), the matters referred to in Section 75(2) so far as they are relevant, any other order made under the Act affecting a child and any child support under the Child Support Assessment Act that a party has provided, is to provide or might be liable to provide in the future.

11. The first step in the task, which I have to perform, is to determine the extent and value of the property, the liabilities and the financial resources of the parties at the time of the hearing.

12.The manner in which the asset pool and the contibution based entitlement of the respective parties is to be treated and calculated has been dealt with by the Full Court in the hearing of the Appeal in this case determined on 2 June 2005.  There is however no firm direction as to the specifics of this case which seem to be subject to a wide ranging discretion.

13.In this case the parties have, at my direction, produced a list of assets, liabilities and financial resources.  The list provided by the parties is Exhibit 1 and is as follows:-

Property Description				Joint H/W	Wife’s Valuation	Husband’s Valuation	Agreed or actual valuation
ASSETS
General
I shares (1000 @ $5.39)				J	$5,390
W property				W	$675,000
Toyota Camry				W	$12,000
Woolworths shares (800)				W	$9,360
Telstra shares				W	$2,868
Westpac Account				H	$50
TOTAL
Superannuation
Notional Addback funds expended				H	$66,954	0
Public Sector Superannuation				H	$250,205
Public Sector Superannuation				W	$102,326
Total Retirement Fund				W	$4,000
TOTAL
LIABILITIES
W property				W	$21,000
Australian Credit Union (car debt)				W	$12,974
Borrowing from Mother				H	$5,000

14. It can be observed that nearly all items are the subject of agreement.

15. It will be seen that the approach I have taken is to provide two separate pools, a general asset pool and a superannuation pool.  I propose then to assess the contribution based entitlements of each of the parties separately to each of those pools and then combine those assessments to come to a figure for the overall contribution based entitlement of the parties.  Having done that I then propose to take into account the various matters under Section 75(2) which may involve a consideration of some of the aspects of the parties superannuation entitlements but will not include any consideration of the Husband’s income stream as income for the purposes of Section 75(2)(b) because it would be double counting having taken into account the lump sum figure determined in accordance with the Regulations.  Having done that I will give consideration to whether the result is just and equitable.  I hope that in so doing I will be following a path within the breadth of the discretion set out by the Full Court in C and C (2005) 33 Fam LR 414.

16. There are disputes relating to items 7, 8 and 9.

17. Item 7 represents monies paid to the Husband as a lump sum portion of his superannuation at the time of his redundancy.  It is a sum of money to which the Wife had made some contributions during the marriage and it might have been expected to form part of the pool.  The way in which the money has been dissipated should determine whether and to what extent there should be a notional addback.  For reasons set out hereunder I have determined he should be required to add back the sum of $44,000.

18. There is no dispute about the quantum of Item 9.  Item 8 is the Husband’s superannuation which, as I have recorded, is the lump sum value calculated in accordance with the Regulations of his pension entitlement to receive $452.23 per fortnight indexed to the C.P.I.  The case proceeded on what I had perceived to be an agreement that the sum of $250,205 was the agreed value.  Ultimately during addresses the Solicitor for the Husband said that he agreed only that that was the valuation in accordance with the Regulations.  There is no other valuation evidence but during addresses the Solicitor for the Husband suggested that consistent with Perrett’s case (1990 FLC 92-101) it would have a value of only the last fortnightly payment due.  There may be arguments about whether the Husband’s superannuation entitlement is in fact “property” but I think it does not matter for the purposes of this case.  Clearly it is a superannuation entitlement in the payment phase.  It is clear that the Husband’s present entitlement which has now an ascribed value of $250,205 was the product of a commutation by him of part of his superannuation entitlement at the time of redundancy of the sum of $161,590.  The value according to the Regulations is the figure of $250,205, so much is not in dispute, and I propose to include the entitlement in the superannuation pool at that figure.

19. Thus it is that the assets and liabilities as determined are as follows:-

Property Description				Joint H/W	Wife’s Valuation	Husband’s Valuation	Agreed or actual valuation
ASSETS
General
1.	I shares (1000 @ $5.39)				J	$5,390
2.	W property				W	$675,000
3.	Toyota Camry				W	$12,000
4.	Woolworths shares (800)				W	$9,360
5.	Telstra shares				W	$2,868
6.	Westpac Account				H	$50
SUB-TOTAL	$704,668
Superannuation
7.	Notional Addback funds expended				H	$44,000
8.	Public Sector Superannuation				H	$250,205
9.	Public Sector Superannuation				W	$102,326
10.	Total Retirement Fund				W	$4,000
SUB-TOTAL	$400,531
LIABILITIES
11.	W property				W	$21,000
12.	Australian Credit Union (car debt)				W	$12,974
13.	Borrowing from Mother				H	$5,000
SUB-TOTAL	$38,974
NET TOTAL	$1,066,025

The Facts  

20. The parties were married in March 1991.  At that time because the Husband’s two children from his prior marriage were spending alternate weekends with the parties they moved to live in rented premises occupied previously by the Husband at H.  The Wife owned a home unit in B but she rented that out as it was only a one bedroom unit and it was not big enough to accommodate the children at weekends.

21. At the time of marriage the Wife had an interest in a home unit at B.  It was subject to a mortgage but her interest in the property was realised by sale about twelve months after marriage when she received $108,000 clear.  In addition the Wife had a 25% interest with her siblings in a home unit at O which was realised some two years after marriage in the sum of $20-25,000.  Just three months after marriage the Wife, in June 1991, took her accrued leave entitlements and superannuation entitlements totalling $100,000 when she was retrenched.  The Wife in addition had a Holden Camira motor car, the value of which has not been proved but there seems to be no dispute about the fact that she owned it.  It appears therefore that the Wife brought into the marriage net assets of the order $230,000 or thereabouts.

22. By way of contrast the Husband at the time of marriage had a bank card debt and a credit union debt together totalling some $16,000 although he had superannuation entitlements accrued at that time of the order of $43,000 but could not be accessed.  He had an interest in properties which were the subject of a dispute with his former wife which was paid to him some time later having a total value of $21,000.  If one was to bring forward the value of the property settlement which the Husband ultimately received then he brought with him including accrued superannuation which could not be accessed assets having a total value of about $48,000.  He was at that time paying Child Support for his children at the rate of $125 per week plus superannuation contributions above the required amount.  The Wife at the time of marriage was employed by the Commonwealth Public Service but some few months later she was made redundant.  It appears that the Wife brought into the marriage assets having a value about four to five times those of the Husband.  If the superannuation which could not be accessed is ignored then the Wife’s contribution was about forty times that of the Husband.

23. In mid 1992 the Wife purchased in her name a property at W, having sold her B unit which yielded net proceeds to her of some $108,000.  The Wife in fact contributed some $142,500 towards the purchase including stamp duty and legal expenses and the balance was financed by a mortgage of some $122,000 in the joint names of the parties.  It is not in dispute that the matrimonial home represents the most significant of the assets in the asset pool and represents virtually two thirds of the pool.

24. The Wife in her oral evidence said that when they purchased the matrimonial home they had agreed that the Husband would be responsible for the mortgage and that all the other expenses such as rates, water rates, insurance and the like would be shared equally.  She said however whilst that was the agreement the Husband did not always have the money to pay because of his commitments for Child Support and the level of superannuation he was contributing meant that she often had to pay more than her share.

25. By way of example it can be seen from the entry of 4 October 1992 contained in the Agreed Chronology for Rehearing (Exhibit 2) that at that time the Husband’s commitments for Child Support, school fees and additional superannuation was such that he had available from his weekly salary only about $45.00 per week, which would no doubt have made it very difficult for him to achieve a fifty percent contribution to the other household expenses.  In 1994 the Husband’s Child Support commitment reduced for a time to $60.00 per week and then went up to $92.50 in 1995 but by June 1996 his Child Support obligations ceased.  About that time, as a consequence of reductions in interest rates, the Husband’s commitment for the mortgage debt reduced on a weekly basis but the Husband did not reduce the mortgage further, but increased the contribution to his superannuation which of course meant that his funds available to contribute to household expenses continued to be limited.

26. The Wife was asked a number of questions relating to her present employment.  She had earlier been employed by the Commonwealth Public Service as a manager but was made redundant and then later reemployed.  Her position now is that she is in full time employment but does not have an allocated position or an official role at present.  For one month she is working she says “shadowing in [communications]”.  She is a band 6 employee but says that she has always been in communications and corporate sections and has experience in budget areas.  She said the people at the workplace are confident they will find her a job though nothing permanent is presently available for her.  She said that she has suffered a lot of stress as a consequence of the Family Court proceedings and some problems that she had at the workplace with one person but her position was redressed by a decision of a review officer which was handed down recently on 12 August 2005.  She said the effect of that position was to reinstate her sick leave entitlements which she otherwise would have lost.  She says she currently lives in a hotel room because she used to live with her mother but her mother sold her home.  She said she is not in a romantic relationship but conceded that she had been out on occasions with a friend and had travelled to Europe with him in 2004.  She said the cost of going to Europe was about $2,500 for the airfare but she had no accommodation cost because she stayed with family and friends.

27. The Wife was asked further questions relating to the Husband’s work on the B unit which she owned when they were first married and on the W home which was subsequently purchased.  She said the Husband did some relatively minor work on the B Unit but she asserted that she had spent about $30,000 over a ten year period on repairs to the W property.  She agreed however that the Husband himself did a great deal of work in assisting with the repairs, maintenance and renovations on the house at W.  She suggested however that for the most part she would pay for the materials and she helped him with the garden and helped doing some of the work around the place although he clearly did most of that work.  Some of the work was considerable in the nature of installing central heating and removing a wall and building French doors, assisting with electric wiring and installing a pool pump.  There were a number of other areas including painting which she conceded the Husband did but she said the Husband was essentially responsible for the external work and the gardening, the mowing the lawn, repairs and handiwork while she did the housework and some of the work around the house by way of assisting.  She said they shared the cooking except that she would mostly be cooking if he was involved doing other things so that in the end result she says she did a good deal more of the cooking than he did.

28. The Wife denied that the Husband in fact paid half the expenses for the house.  She said that there were many occasions when he wasn’t able to do so although she agreed that was the original arrangement.  I accept the Wife’s evidence on these issues.

29. The Wife said that she wished if possible to buy the house following the property settlement and said that she had made enquiries of the banks who could lend her between $256,000 and $450,000.  It was suggested to her that if she had sufficient confidence to borrow money of that proportion then she must be confident about keeping her job with the public service.

30. She said that when the Husband’s children, who were about fifteen and thirteen years of age respectively at the time of marriage, reached age eighteen the Husband was able to stop paying Child Support.  The Wife said she suggested to him that he pay the additional money off the mortgage so that it would be reduced more quickly but he declined to do that.

31. The Wife gave some examples of monies she paid for repairs to the house.  She said she had paid $1,500 for the pool pump, $1,000 to her brother for installing French doors, $400 for an electrician and $1,300 or $1,400 for a fence.  There were other things that she said she did but could not recall.

32. The Husband was asked about the period of time when he took voluntary redundancy in January 2002.  He received a redundancy payment totalling $84,000 and lump sum superannuation of $66,954 making a total of about $151,000.  It is not in dispute that at that time he paid $80,000 off the mortgage, that he paid $14,000 to his children and that he paid credit card debts of about $10,000, possibly up to $15,000.  That leaves about $42,000 to $47,000 remaining from the lump sum superannuation which is unexplained.

33. The Husband was taken through a series of entries in bank statements from the ANZ bank (Exhibit “W1”) and it was apparent that there were many entries relating to monies which were apparently used on gambling.  He agreed that he did gamble significantly at that time and said that if the withdrawals occurred at a pub or a club it was probably gambling money.  There were many entries of the order of $1,000 to $1,500 and the Husband in his evidence has made no attempt to otherwise explain where the monies received by way of lump sum superannuation went.

34. The Wife’s Counsel contends he should be required to add back all $66,954.  A summary of withdrawals being part of Exhibit “W1” points to gambling withdrawals totalling $29,950.  He should in my view be required to add back the gifts totalling $14,000 which he made to his Children so that the total figure to be added back should be rounded out at $44,000.  In the absence of any other evidence from the Husband explaining his expenditure it seems to me that he should be required to write that amount back in.

35. The bank statements which are Exhibit W1 showed an address to the Husband at A.  The Husband said that was the address of his partner whom he said he hopes to marry.  She is apparently the Executive Assistant to the Managing Director at the public service

36. The Husband was asked a number of questions relating to his own job applications.  He said that his position at the public service when he voluntarily resigned was as personal assistant to the managing director.  He said he was at the top of band 6 in terms of the level of his employment.  He said that he had started as the driver to the managing director at the workplace and that by the time he resigned he had a sound knowledge of computer programs and was responsible for the budget in his area.  He said he would oversee all the budgets in his area.  At the time he resigned he was doing an advanced Diploma in Accounting at a Sydney TAFE and had passed all but three subjects by May 2002.  He said he hasn’t completed the course and has made no effort to continue the course.  He said he can’t concentrate on studies because of the case.  He said that he has intermittently applied for jobs but hasn’t obtained any and is living on his pension.

37. He agreed that he had experience as a car driver, that he had experience with budgets and that he was a competent woodworker and handyman.  He had made a number of items of furniture including a bookshelf for which he was paid $5,000.  He said he doesn’t do that as a hobby anymore.  He denied that he would be able to work as a cab driver, a hire car driver or as a woodworker or an assistant to a carpenter in the building trade.

38. The substance of the Husband’s evidence was that he was emotionally unable to get his life into order to obtain a job and that he hoped that might happen after this litigation was over.  In my view having regard to the evidence he gave and in the absence of any medical evidence suggesting some sort of depression or other medical condition it is my view that he has not made significant efforts to obtain employment and does not in reality want employment at least for the present time.  Whether that derives from a perceived advantage in these proceedings or some other reason is not clear but it is my view that with any real effort he could obtain employment.  The level of earnings he might expect are difficult to assess but in my view having regard to his wide experience he might be expected to have an earning capacity roughly equal to or perhaps slightly higher than that of the Wife.

The Resolution of the Issues

The Section 79(4) Contributions

The General Assets Pool

The most significant factors relating to the contributions made by the parties, not recorded in any particular order, are as follows:-

• The overwhelming initial contributions of the Wife when compared to those of the Husband.
• The fact that the Wife’s contributions meant that the parties could purchase and live in the home for the whole of the marriage for the cost of the mortgage repayments, council and water rates, insurance and the like.
• The Husband made a significant contribution of $80,000 after separation from his redundancy monies.  It is not to lessen the effect of that contribution but if it had been made around the time that the Wife made the significant contribution which enabled them to purchase the home then they would have had considerably more money available to them during the marriage.
• The Husband’s mortgage payments during the marriage reduced the amount of the mortgage by only about $18,000.
• The Husband had no money to contribute when the house was purchased so that it was the Wife’s contribution which enabled the house to be purchased and retained throughout the marriage thus providing by far the largest single item in the pool.
• The Husband has remained in occupation of the former matrimonial home since separation paying mortgage payments of just over $20 per week.  Whilst there is some dispute about it, it seems that he pays most of the utilities.  The Wife by contrast lived initially with her mother and has had to rent accommodation since her mother sold her home whilst the Husband has occupied the home having a rental value of the order of $360 per week.  That situation represents a contribution by the Wife over the nearly four year period which has elapsed since separation.  For a period of some six months in 2003 the Husband’s daughter and her Child resided in the house with him.
• The Wife has worked during the whole of the marriage but the Husband has not worked since December 2001 which was some ten months after separation under the one roof.
• During the marriage the Husband paid significant sums for Child Support and school fees up until June 1996 which meant that there were limited funds available to contribute to the household.  It is my view that the Wife has made the greater contribution to the household during the course of the marriage.  It should be remembered of course that during the marriage the Husband regularly paid superannuation in excess of the required amounts which meant that the money available to the household was reduced.  Those matters of course are relevant to the Husband’s contribution to the superannuation pool but point up the need for the Wife’s contribution to the household being greater than otherwise might have been the case.
• Whilst the Husband asserts that the Wife kept the monies which over and above her contribution of $142,500 to the purchase of W she received from the sale of her B unit and her redundancy payment however there is evidence that the Wife paid some $20,000 towards IVF expenses which must, I think, be regarded as a family matter and considerable sums of money towards the cost of materials for renovations to the home.  There is no evidence she wasted the balance of the funds.  They would appear to have been used for household purposes.
• It is of course the case that the Husband did considerable amount of work in and towards the renovation of the W property over the period of the marriage.

Having regard to those various matters it seems to me that the parties respective contributions to the general pool should be assessed as to 75% to the Wife and 25% to the Husband.

The Superannuation Pool

39. The nature of the three principal assets should be considered.  Item 7 comprises addbacks of $44,000 from a lump sum of $66,000 which the Husband received at the time of redundancy in December 2001 or shortly thereafter.

40. Item 8 represents the value in accordance with the regulations of the Husband’s right to continue to receive the sum of $452.23 per fortnight indexed for the rest of his life.  Neither party seeks a splitting Order in relation to that entitlement.  It is common ground that the Husband had superannuation entitlements of $43,000 at the time cohabitation commenced.  The commutation took place shortly after the Husband’s redundancy in December 2001 after separation under the one roof in February 2001 so that the whole of his entitlement save for the $43,000 was built up during the marriage.  Although there is no evidence of it before me it was common ground that the Husband has no right to reconvert his income stream back into a lump sum and cannot alienate any part of his income stream.

41. The Wife’s superannuation entitlement is to a lump sum having a value calculated in accordance with the Regulations of $102,326.  The Wife commenced the fund in 1995 when she recommenced with the public service.  There is no evidence before me of what the superannuation entitlement was at the time of the first trial or at the time of separation.

42. Having regard to those various matters the following would seem to be the most significant factors in assessing the contribution based entitlement of the respective parties to the superannuation pool:-

• The Husband had an accrued entitlement of $43,000 at the time of marriage.  That would without more have continued to grow during the period of the marriage and that component of the superannuation including the growth factor contained within it is part of the superannuation to which the Wife had made no contribution.
• The Husband paid more than the required amount by way of superannuation during the whole of the marriage so that there was less money available for the household expenses.  I find that the Wife made up the difference though there is no specific figure that can be allocated to that.  Clearly the Wife made contributions because there was less money available in the household pool.
• The Wife’s superannuation pool has been built up during the term of the marriage and of course since separation.  There is no figure available as to what the extent of her entitlement was at separation but it is now ten years since her membership of the fund commenced.  The Husband made a contribution to that part of the fund which built up during the marriage.

43. Having regard to those factors it is my view that the contribution based entitlement of the parties to the superannuation pool should be 75/25 in favour of the Husband.

44. The pool of general assets represents 64% of the total assets.  The superannuation pool represents 36%.

45. When those figures for the two separate pools are taken together they give rise to a contribution based entitlement of 57/43 in favour of the Wife.  That is a relatively precise figure but it is the one arrived at and I see no need to round it out.

The Section 75(2) Matters

46.    The most significant factors recorded in no particular order would appear to be:-

• The Husband is aged fifty and so far as the evidence goes is in good health.  He says that he suffers from some emotional difficulties but there has been no expert medical evidence put forward to support that contention.  The Wife is aged forty-nine and is in good health although she gives evidence of some emotional difficulties she has had also.  These are not supported by admissible evidence.
• In terms of income stream the Husband’s superannuation pension must be ignored because it has been taken into account as a lump sum entitlement valued in accordance with the regulations.  However the Wife earns an income of about $58,000 per annum and my finding is that the Husband has the capacity to earn about the same amount.  He has not worked since December 2001 and at that time his income was about $55,000 per annum.
• Neither party has responsibility to support any other person nor do they have any entitlements to pensions or benefits which are relevant.
• The superannuation entitlements however are worthy of examination for the purpose of making a comparison.

1. The Husband’s lump sum entitlement which has been included in the asset pool at the value ascribed pursuant to the Regulations cannot be alienated and cannot be reconverted to a lump sum.  These are factors which are relevant in a consideration of these matters.  Importantly however it should be noted that the income stream is indexed.
2. The Husband’s income stream is being received presently and has in fact been received for a period of four years since commutation took place.
3. The Wife’s lump sum entitlement of $102,326 cannot be accessed until she is aged fifty-five at least and in retirement.  It will continue to grow up until that period of time which is now some six years hence.
4. If some comparison is made between the lump sum attributed to the Husband’s superannuation entitlements and the lump sum value of the Wife entitlements it can be seen that:-
• The Husband has received about $225 per week for the last four years (totalling nearly $50,000) and will continue to receive that amount with the benefit of indexation until death.  Without taking indexation into account he should receive some $70,000 over the next six years before the Wife is eligible to receive any money.
• The Wife’s entitlement is not presently payable and will not be payable for at least six years.  If one was to attribute an income of say 5.5% (being the cash rate in SMH on 16 December 2005) based upon the present value then she may receive in six years time something of the order of $100-110 per week on funds invested.

Looked at in that way the asserted need for a Section 75(2) adjustment in favour of the Husband because of the negative aspects of his superannuation entitlement falls away in my view.

• There appear to be no other relevant matters pursuant to Section 75(2).

47. In the result it is my view that no adjustment pursuant to Section 75(2) should be made.

48. That results in an adjustment of the parties property in the proportions 57/43 in favour of the Wife and I propose to make Orders to give effect to that.

The Effect of the Proposed Orders

49. The Wife will receive:

I Shares	$5,390.00
W property	$675,000.00
Toyota Camry	$12,000.00
Woolworths Shares (800)	$9,360.00
Telstra Shares	$2,868.00
Public Sector Superannuation	$102,326.00
Total Retirement Fund	$4,000.00
$810,944.00
Less:
Mortgage on W Property	$21,000.00
Credit Union Debt – Car	$12,974.00
Cash Payment to Husband	$169,221.75
$203,195.75	$203,195.75
$607,748.25
(note) – the parties agreed at trial that the Wife would take the jointly held I shares.
50.The Husband will receive:
Westpac Account	$50.00
Funds Notionally (added back)	$44,000.00
Public Sector Superannuation	$250,205.00
Lump sum payment from Wife	$169,221.75
$463,476.75
Less:
Borrowing from Mother	$5,000.00
$458,476.75

51. I am satisfied that the effect of the orders so made will be just and equitable.

The Orders

1.    That the Wife within six weeks from this date pay to the Husband the sum of $169,221.75 and in consideration of such payment the Wife be declared solely entitled at law and in equity to the home at W.

2.    That in default of the Wife paying to the Husband the principal sum pursuant to Order 1 by the due date the said sum shall accrue interest at the rate prescribed under the Rules from the due date until date of payment of the principal sum to the Husband.

3.    The Husband shall vacate the home upon payment of the sum provided for in Order 1 and leave the home in good order and condition.

4.    That within 7 days from this date the Husband transfer to the Wife his interest in the jointly owned I Ltd shares.

5.    Subject to Orders herein each party be solely entitled to exclusion of the other to all items of personal property of whatsoever kind in nature and possession of each of the parties at the date of the making of these Orders, including but not limited to all or any monies standing to the credit of either of the parties in any bank, or building society, shareholdings, motor vehicles, business, employment and/or superannuation entitlements.

6.    I grant liberty to apply.