Chanter v Catts - [2005] NSWCA 411

No judgment structure available for this case.

Reported Decision:
64 NSWLR 360
(2006) DFC 95-329
[2006] ALMD 4024
34 Fam LR 414
[2006] ALMD 4025

Court of Appeal

CITATION:
CHANTER v CATTS [2005] NSWCA 411

HEARING DATE(S):
22-09-2005

JUDGMENT DATE:

25 November 2005

JUDGMENT OF:
Hodgson JA at 1; Bryson JA at 44; Hunt AJA at 122

DECISION:
Appeal allowed, orders varied: see [43]

CATCHWORDS:
DE FACTO RELATIONSHIPS - adjustment of interests under s.20 of Property (Relationships) Act - by majority, appeal allowed and further adjustments ordered - observations on operation of s.20 where superannuation entitlements are a financial resource - no necessary relationship between contribution to financial resource and incidence of adjustment on property - views of Powell and Cole JJA in Green v Robinson disapproved: see Hodgson JA at [20]-[21] Bryson JA at [82]-[90] David Hunt AJA at [120].

LEGISLATION CITED:
Property (Relationships) Act 1984 (NSW), ss 3(1), 20
De Facto Relationships 1984, ss 46, 47(1) & (2), 49 (1)

CASES CITED:
Green v. Robinson (1995) 36 NSWLR 96
Gazzard v. Winders (1998) 23 FamLR 716
Lyman v. Lyman (1989) 13 FamLR
Jones v. Grech [2001] NSWCA 208, 27 FamLR 711
Howlett v. Neilson [2005] NSWCA 149
Gronow v Gronow (1979) 144 CLR 513
Golosky v Golosky NSWCA (Unreported 5 October 1993)
Singer v Berghouse (1994) 181 CLR 201
Evans v Marmont (1997) 42 NSWLR 70
Wallace v Stanford (1995) 37 NSWLR 1
Dwyer v Kaljo (1992) 27 NSWLR 728
Theodoropoulos v Theodosiou (1995) 38 NSWLR 424
Mallet v Mallet (1984) 156 CLR 605
Black v Black (1991) 15 Fam LR 109
Foster v Evans (unreported, Supreme Court of New South Wales, 31 October 1997)
Roy v Sturgeon (1986) 11 NSWLR 454
Nguyen v Scheiff (2002) 29 Fam LR 177

PARTIES:
Maree Eve Chanter - Appellant
Peter Frederick Catts - Respondent

FILE NUMBER(S):
CA CA 40281/2005

COUNSEL:
Mr C.M. Simpson with Ms D Ward - Appellant
Mr M Broun QC - Respondent

SOLICITORS:
Adrian Twigg & Co - Appellant
Stuart Fowler & Partners - Respondent

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):
ED 3690/2002

LOWER COURT JUDICIAL OFFICER:
Master Macready

CA 40281/2005

HODGSON JA
BRYSON JA
HUNT AJA
25 November 2005

MAREE EVE CHANTER v PETER FREDERICK CATTS

Judgment

1 HODGSON JA: On 2 December 2004, pursuant to reasons for judgment given on 19 November 2004, Master Macready made orders in proceedings in which the appellant had sought orders under the Property (Relationships) Act 1984. The substantial effect of those orders was that an agreement between the parties dated 18 April 1997 was set aside; that a jointly owned property at 3 Foss Street, Hunters Hill was to be sold, with four-fifths of the net proceeds going to the appellant and one-fifth to the respondent; that otherwise each party was to be the owner of property in their name or possession; and that the parties were entitled to retain superannuation held under their own names to the exclusion of the other party. The Master also made orders as to costs.

2 The appellant appeals from that decision.

CIRCUMSTANCES

3 The respondent was born in 1940, and the appellant was born in 1954; and they had a de facto relationship between 1984 and 1997.

4 The respondent had three children from an earlier marriage, who are now in their 30s. There were three children of the relationship between the appellant and the respondent, Alexander born in 1986, Nicola born in 1988 and Lucas born in 1995.

5 At the commencement of the relationship, the appellant was a medical practitioner working as an intern at Concord Hospital earning about $40,000.00 per year. The respondent was a general surgeon in private practice.

6 At the commencement of the relationship, the appellant had minimal net assets. The respondent had substantial assets, but was involved in litigation with his former wife to resolve their property affairs. Those matters were resolved by 1988, at which time the respondent’s assets were: superannuation $93,351.85; property 24 Coventry Road, Strathfield $250,000.00; property 9/5 Hampstead Road, Homebush West (later sold in 1996 for $140,000.00). He had liabilities, which had been $186,923.00 as at 30 June 1984 and were discharged over time to 1998.

7 During the period of cohabitation, both the appellant and respondent received some gifts and inheritances. Between 1984 and 1990, the respondent received $200,000.00 from his mother and $26,000.00 from an aunt’s estate. In 1990, the respondent received $120,000.00 from his mother’s estate. In 1995, the appellant received $200,000.00 from her mother’s estate. All these amounts were used for the purposes of the relationship.

8 At the time of separation, the appellant’s net assets were about $160,000.00, including superannuation of about $26,000.00. The respondent’s net assets were about $1.4 million, including superannuation of about $700,000.00.

9 The respondent re-married in July 1996, at a time when the appellant was overseas with the children, although the de facto relationship did not cease for some months after that time.

10 In April 1997, the parties entered into an agreement which, among other things, provided in broad terms that the parties join in purchase of a new home, to be occupied by the appellant and the children, with provision that the respondent could use the home as security for loans to himself not exceeding 80% of the value of the home.

11 It was pursuant to that agreement that the property at 3 Foss Street, Hunters Hill was purchased. At the date of the hearing, this property was worth about $1 million, and was subject to a mortgage of about $500,000.00, which was treated as a liability of the respondent. The effect of the Master’s orders would have been that, on sale of that property, the appellant receive about $400,000.00 and the respondent about $100,000.00.

12 Apart from that property the net assets of the appellant at the date of the hearing were about $145,000.00, including superannuation of $215,000.00 (her debts were about $120,000.00, and her other assets apart from superannuation were about $50,000.00).

13 At the date of the hearing, the assets of the respondent were about $1.2 million, including about $940,000.00 superannuation. His interest in the Hunters Hill property was treated as zero, because the debt of about $500,000.00 cancelled out his half interest in the $1 million worth of the property.

14 The appellant married another man in January 2002.

15 There were financial and non-financial contributions of the parties during the relationship, and also during the seven years after the ending of the relationship, which were taken into account by the primary judge.

LEGISLATIVE PROVISION

16 The order made by the Master was made pursuant to s.20 of the Property Relationships Act 1984, which is as follows:

20 Application for adjustment

DECISION OF PRIMARY JUDGE

17 In the course of his reasons, the primary judge referred to decisions concerning the way superannuation should be dealt with, namely Green v. Robinson (1995) 36 NSWLR 96 and Gazzard v. Winders (1998) 23 FamLR 716. He said it appeared from the former case that there must be some factual matter which enables one to form the view that there had been a contribution to a spouse’s superannuation entitlements, if a party was to have an order based on those entitlements. He went on to say this:

131 In this case it would seem that there is very little evidence of contribution to superannuation by either party, except perhaps for the two years when the plaintiff was at home on a full-time basis looking after children. In these circumstances there would be a small contribution by her to the defendant's superannuation. The defendant's superannuation increased from $93,351.00 to $700,000.00 over the period of the relationship, which was a period of some 13 years. There was thus a contribution of about $95,000.00 to the defendant's superannuation.

18 His concluding reasons for the orders he made were as follows:

132 In her submissions the plaintiff sought to receive a transfer of the defendant's interest in the Foss Street property and a provision that over a period of some two years he thereafter discharge the mortgage over the property. It was submitted that he would be able to do this because by the time he was 65 he would have access to his superannuation entitlements.

"It is submitted that, having regard to the contributions up to the date of separation an appropriate division would be 40% to the plaintiff, 60% to the defendant.

The total assets of the parties at separation were $858,916, 40% of that is $343,566.40.

Of that total sum the Plaintiff had $136,923.

If we include the car the Plaintiff received shortly after separation which was $35,000 the total amount the Plaintiff had was $171,923. It is submitted that the car should be included.

Accordingly the amount appropriate to provide to bring the Plaintiff up to 40% was $171,643.40 (or if the car is not included $206,643).

the CPI Sydney at 30 March 1997 stood at 120.6
the CPI Sydney at 30 June 2004 stood at 145.6

134 It can be seen that this submission focuses on the position of the parties at separation in 1997 and is based upon the supposition that there was to be no recognition of parenting contribution post 1997 and to take no account of any contribution to superannuation. I have concluded that I should take account of those parenting contributions, which raises the period from 13 to 20 years, which is a substantial increase.

135 In addition to looking after the children when they were young the plaintiff has contributed to $95,000.00 of the defendant’s superannuation.

136 The plaintiff has had the benefit of the occupation of the Foss Street property since 1997 but it should not be forgotten that it was also the home for the children who occupied it for almost the whole of the period. The property is jointly owned in partial recognition of part entitlements that gives an entitlement to occupation. I do not see this benefit as being an important one in the exercise that I have to perform.

137 Another benefit the plaintiff received shortly after separation, pursuant to the separation agreement, was a car and this should be taken into account.

Plaintiff Defendant

139 The plaintiff's net assets have increased as a direct result of the separation agreement. The defendant's assets have decreased no doubt in part due to the fact that he has had two families to support.

140 A sale of Foss Street will result in the discharge of the mortgage of $501,533.00 and a final separation of the parties' financial affairs at this time.

141 It seems to me preferable that there be a final resolution of the parties' financial affairs and I should have regard to the present net asset pool of $675,348.00 noting that it has probably been reduced by the defendant's support of a second family.

GROUNDS OF APPEAL

19 The appellant relies on the following grounds of appeal:

1. The Master erred when considering the Defendant’s superannuation in holding he was limited in assessing the adjustment to be made pursuant to s.20 of the Property (Relationships) Act 1984 to direct or indirect financial contributions to those entitlements.

2. Alternatively, the Master erred in his assessment of the Plaintiff’s contributions to the financial resources of the Defendant in the form of his superannuation to the extend (sic) he held it was a contribution to about $95,000 of the Defendant’s entitlements of $940,486.

3. The Master erred in holding the Defendant’s financial contributions made to or on behalf of the children of the parties exceeded those of the Plaintiff to the extent of the school fees paid by him.

SUPERANNUATION

20 I agree substantially with what Bryson JA says about superannuation in pars.[82] to [90] of his judgment.

21 In particular, if the judgments of Powell JA and Cole JA in Green v. Robinson (1995) 36 NSWLR 96 are interpreted as deciding that a party’s superannuation entitlements either (1) are not property that can be directly affected by an order under s.20 of the Act, or (2) can be taken into account in determining what order is appropriate only if and to the extent that the other party had contributed to that entitlement, then in my opinion those judgments are wrong and should not be followed.

22 It is accepted that the exercise of jurisdiction under s.20 of the Act involves three steps:

Lyman v. Lyman

Jones v. Grech

23 In my opinion, superannuation entitlements should be included in the assets considered in step (1) of that process; and a determination in step (3), concerning whether and to what extent the order should affect superannuation entitlements, does not depend on contributions considered in step (2) being identified as direct or indirect contributions to those superannuation entitlements.

24 There may be good reasons for treating superannuation entitlements somewhat differently from other assets, inter alia because of limitations in a beneficiary’s control over and access to this asset; but that may depend upon the circumstances. There may be a difference between (1) an employee whose wages have been reduced to the extent of compulsory deductions, giving rise to superannuation entitlements in a large fund in which the employee has no control, on the one hand, and (2) a self-employed person who has considerable control over what amounts are invested and perhaps over the fund itself, as well as over what may be withdrawn, at least after passing the age of 55, on the other hand. In the case of the latter, the superannuation entitlements may not be very different from other investments.

25 In this case, the respondent’s superannuation entitlement is in a fund called Peter Catts Superannuation Fund, the principal assets of which appear to be a little over 2 million units in McIlwraith Unit Trust, said to be worth a little over $2.3 million. Other beneficiaries of this fund appear to include the appellant to the extent of about $120,000.00, the respondent’s second wife to the extent of about $845,000.00, and each of the respondent’s children from his first marriage to the extent of about $196,000.00 each. Other unit holders in the McIlwraith Unit Trust include the respondent himself (a little over $255,000.00) and something called Catts Super Fund (just under $435,000.00); and the only other major unit holder is a company called Athelstane International (to the extent of a little over $463,000.00). In those circumstances, it would seem that the respondent has considerable control over what can be put in or taken out of the fund and over the conduct of the fund; and there is little reason for treating his superannuation entitlements as different from ordinary investments.

ERROR BY MASTER

26 In my opinion, the Master did fall into error in his approach to superannuation entitlements.

27 It appears to me that he did substantially accept that a party’s superannuation entitlement can be taken into account in determining what order is appropriate only if and to the extent that the other party had contributed to that entitlement. He consistently separated superannuation entitlements from other assets; and par.[131] and the following paragraphs of his judgment suggest that he did in fact have regard to the respondent’s superannuation only to the extent he considered justified by a contribution from the appellant of $95,000.00. On the whole, especially having regard to the word “thus” in par.[131], I think the $95,000.00 referred to by the Master was an approximation to two-thirteenths of the difference between $700,000.00 and $93,351.00 (which is $93,330.61).

28 Although the Master did not make the error of basing his order in any determinate way on this figure of $95,000.00, in my opinion these are sufficient indications of error, in particular the error of treating this figure as having some particular significance in relation to the taking into account of the respondent’s superannuation in determining the s.20 order.

WHAT SHOULD THIS COURT DO?

29 The question then is, was the result materially affected by this error, and would I come to a different conclusion anyway?

30 I find it helpful to take a broad view, having regard to initial contributions of the parties, contributions arising from inheritances and gifts, and the asset situation at the time of the separation and the time of the hearing.

31 As set out above, the respondent’s initial contribution was of the order of $340,000.00, and he also contributed about $346,000.00 by way of inheritances and gifts from his family. The appellant’s initial contribution was minimal, but she contributed $200,000.00 from an inheritance. Accordingly, the starting figure is about $886,000.00.

32 The assets at the time of separation totalled about $1.56 million, so the increase in assets during the relationship was about $674,000.00.

33 In a relationship of 13 years, producing three children, and having regard to the activities of the parties as described in evidence, this is a case where approximate equality of benefit from the increase in value would seem appropriate, as a starting point. The appellant’s contributions to the relationship through income-earning, home-making and care of the children could fairly be considered as at least equalling the respondent’s contributions through income-earning and use of his greater capital contributions, particularly where the cost to her of her contributions included a delay of many years in qualifying as a psychiatrist, so as to be able to earn at specialist rates: see Howlett v. Neilson [2005] NSWCA 149 at [36]. On the basis of equality of contributions, each would get $337,000.00 of the increase; and if one then adds back the appellant’s $200,000.00, the result would be $537,000.00 for the appellant. This would represent about 34.4% of the total assets on separation.

34 If the question before the Court were the division of assets at the date of separation, I think this figure of $537,000.00 to the appellant would be towards the bottom of the appropriate range, both because I assess the appellant’s contributions as at least equalling those of the respondent, and because of the so-called “erosion principle” discussed in Howlett at [30]-[34]. This principle tends to reduce the effect of discrepancies in initial contributions, and thus would tend to increase the share going to the appellant; although, for reasons given in Howlett, it does not apply as strongly in cases under the Property (Relationships) Act as cases under the Family Law Act.

35 However, by the date of the hearing, the total assets had increased by a further sum of about $270,000.00 to about $1.83 million. The Foss Street property had increased in value by about $400,000.00, and the respondent’s assets had otherwise decreased. The decrease could possibly be connected with the respondent’s second wife being entitled to superannuation benefits of about $845,000.00, although the evidence does not appear to justify a finding to that effect. In any event, for reasons given earlier, I do not think the respondent’s own $940,000.00 in superannuation entitlements should be treated differently from other assets.

36 In my opinion, the appellant’s share should be increased above the figure of at least $537,000.00 referred to earlier, by reason of this increase of $270,000.00. One possibility would be to apply the same percentage of 34.4% to that increase, so as to raise the appellant’s share to about $630,000.00.

37 However, I do not think this would adequately respond to the contributions made by the appellant since separation. Two of the parties’ children have required a greater degree of care than usual, because of behavioural problems, and the burden of this has fallen primarily on the respondent. This onerous responsibility has been even more burdensome to the appellant because from August 1996 she has suffered from depression requiring treatment. Further, the increase of the assets has come about through an increase in value of a house purchased in equal shares. For those reasons, in my opinion the appellant’s share of the further increase should be at least half, so that (as a minimum) $135,000.00 should be added to the $537,000.00, giving $672,000.00.

38 Apart from her interest in the house at Hunters Hill, the appellant’s assets at the date of hearing were about $145,000.00, so that to give her $672,000.00 of the assets at the date of hearing would require that she receive about $527,000.00 in respect of her interest in the house. If the respondent were to be left responsible for so much of any mortgage on the house as now exceeds the sum of $501,553.00 mentioned in the Master’s order, the appellant would receive about $500,000.00 in respect of her interest in the house, if she were given the house subject to a mortgage of that amount. My view is that that provision would be below the bottom of a range that I might adopt in deciding the matter; and even that is about $100,000.00 more than provided by the Master’s order.

39 Having regard to that consideration and the error I have identified, I do think it appropriate for this Court to consider for itself what the appropriate result would be.

40 On the whole, I think the appropriate result would be about $50,000.00 more favourable to the appellant than the figure of $672,000.00, say about $725,000.00. That is, she should receive about $580,000.00 in respect of her interest in the house. The order I would propose is that the respondent should be required to reduce the mortgage on the house to $420,000.00 within 28 days; and that thereafter, if the appellant can re-finance the mortgage within six months or such longer period as the respondent may agree, she to pay interest in the meantime, then the respondent is to transfer the property to her absolutely. If the appellant cannot re-finance the mortgage within such time, then the property should be sold, and the appellant should receive all the net proceeds of sale, after repayment of the mortgage reduced to $420,000.00.

41 On that basis, the appeal should be allowed, and, at least unless there have been any relevant offers, the respondent should pay the appellant’s costs of the appeal and have a certificate under the Suitors’ Fund Act if otherwise eligible.

42 The costs at first instance would need to be dealt with having regard to offers made before the first instance hearing, and I would direct that, unless the parties agree, submissions as to those costs be provided by the appellant within 7 days and the respondent within a further 7 days.

43 I propose the following orders:

44 BRYSON JA: The appellant, plaintiff in the Equity Division, appeals against the decision of Master Macready of 19 November 2004 on her claim for adjustment pursuant to s 20 of the Property (Relationships) Act 1984 (NSW) of the property interests of the parties after their de facto relationship which existed from 22 March 1984 until late April 1997. There are three children of the relationship, Alexander born on 12 July 1986, Nicola born on 25 December 1988 and Luke born on 6 April 1995. The proceedings relate to the interests of the parties and not of their children. The parties entered into a Cohabitation Agreement on 13 August 1985 and a Separation Agreement on 18 April 1997. The appellant claimed orders setting aside the Separation Agreement, and before the hearing it became undisputed that it should be set aside and that the Court should deal with adjustments of interests in property under s 20 of the Act.

45 Counsel for the appellant pointed to two avenues which he contended open up reconsideration of the Master's discretionary decision. One related to what were said to be errors in the Master’s determination that the appellant had made a contribution to the respondent’s superannuation. The further ground of attack was to the effect that the adjustment ordered by the Master was unreasonable overall in view of the size and burden of the appellant's contributions, including their effect on her deferral of obtaining specialist qualifications and the increased income which goes with them, and also in view of the unsatisfactory nature of the respondent's evidence about his income, his many competing activities and their enhancement of the domestic burden on the appellant.

46 The respondent was born on 12 April 1940. When the relationship began he was a general surgeon in private practice; he met the appellant in 1983 when she was a final year medical student and he was her surgical tutor. The respondent was then married and he had three children, who are now adults. His first marriage was dissolved and property questions between him and his first wife were resolved over the next few years. The appellant was born on 24 July 1954 and when the relationship began she was a medical practitioner working as an intern at Concord Hospital. She worked part-time as a medical practitioner during the relationship, in the order of half the time, except for periods totalling twenty-two months during which she did not work because she was caring for very young infants.

47 The parties entered into a Cohabitation Agreement dated 13 August 1985 but they did not obtain solicitors’ certificates of the matters referred to in s 47(1)(d) of the De Facto Relationships 1984 as that Act and s 47 then were. The effect of s 46 is that that Agreement is subject to and enforceable in accordance with the law of contract; but neither party has asked the Court to enforce its terms. The absence of Solicitors’ Certificates under s 47 (1)(d) means that there is no prohibition under s.47(1) against the Court making an order inconsistent with the terms of that Agreement. The Separation Agreement made on 18 April 1997, which was certified under s 47 (1)(d) (as then in force) confirmed that the Cohabitation Agreement was still operative and binding: see Recital D (Blue 76). This confirmation did not mean that the prohibition in s 47(1) against the Court making an order inconsistent with the terms of the Cohabitation Agreement became effective; because it was still true of the Cohabitation Agreement that the circumstances in which the prohibition would exist had not happened. In any event all the provisions of the Separation Agreement were set aside by Order (2) of the Master’s orders, as is authorised by s 49 (1), so that if the confirmation of the Cohabitation Agreement by the Separation Agreement were otherwise significant (and I do not think it is) that confirmation was among the provisions of the Separation Agreement which have been set aside. The result is that there is no restriction under s 47 (1) on the power of the Court to make an order under s 20 inconsistent with the terms of the Cohabitation Agreement.

48 On behalf of the respondent it was submitted to the effect that the Cohabitation Agreement had contractual force notwithstanding s 47(1), and that the Master ought to have taken it and its contractual force into account as something which ought to have led to a potentially lower result for the appellant that she in fact achieved. The effect of a Domestic Relationship Agreement where there has not been compliance with the requirement for Solicitors’ Certificates is spelt out by s 47(2) which empowers but does not require the Court to have regard to the terms of the Agreement. The submission did not go to the length of identifying any particular provision of the Cohabitation Agreement or any related consideration which should have influenced the Master’s decision, and nothing which should come under consideration as a relevant error has been identified. The burden of the Cohabitation Agreement on the appellant was quite drastic and I find it understandable that its provisions did not claim attention in an address to s 20(1). That the Cohabitation Agreement would support a lower award does not provide an answer to any argument in favour of a higher award.

49 At the commencement of the relationship the appellant had very little resources; the Master found that she had bank accounts, household items, white goods and a car which had cost $6,000.00 and she owed Westpac $10,000.00 which she had used to purchase her assets. The respondent had substantial assets including four houses which were unencumbered and another house which was mortgaged, and he also had interests as trustee of a Family Trust established by his parents, some private companies, two cars, furniture and chattels including some antiques and some parcels of shares. He was also the trustee of the Peter Catts Family Trust which owned significant assets. In resolution of his litigation with his wife the respondent sold several properties and generally reorganised his affairs. The Master regarded it as preferable to consider the assets which the respondent had in 1988 after he had resolved all matters connected with his first marriage; and took that as the starting point for adjustments under s 20. The parties accepted that this was appropriate. The Master found:-

83. The effect of the various sales is that in 1988 the property of the Defendant comprised the following:

1. The superannuation he held at the commencement of the relationship amounting to $93,351.85.

2. 24 Coventry Road, Strathfield purchased in 1987 for $250,000.00.

3. 9/5 Hampstead Road, Homebush West.

The defendant’s liabilities were $186,923.00 as at 30 June 1984. His evidence was they were discharged over time to 1997 and I would thus infer that there was still some indebtedness in 1988.

50 In the period 1984 to 1990 the respondent received a gift from his mother, an inheritance from his mother and an inheritance from his aunt and these totalled $346,000.00. The Master accepted the respondent’s evidence that he applied these funds to the relationship. The appellant received an inheritance and spent $46,000.00 for the purchase of a car for the respondent.

51 The Separation Agreement incorporated schedules of the property and resources of the parties at separation. The Master found that the property and resources of the appellant at that time were:-

PROPERTY

Westpac Classic A/c
$13,000.00

Cash
$200.00

Kaizen Hospitals
$25.00

Holroyd Private Hospital
$120,000.00

Debt due by defendant
$1,000.00

TOTAL PROPERTY
$134,200.00

LIABILITIES

Credit cards

$2,302.00

Property

$134,200.00

Superannuation

$26,267.00

$160,467.00

Less Liabilities
$2,302.00

TOTAL PROPERTY & RESOURCES
$158,165.00

52 The Master found:-

89. The defendant’s financial position as at 1997 omitting the life assurance policy which appears at Item 4 and the items of personalty which appear at Item 11, consisted of the following property:

63 Llewellyn Street, Rhodes
$950,000.00

5/15 Parnell Street, Strathfield
$250,000.00

51 Llewellyn Street, Rhodes (50%)
$250,000.00

6,000 shares in Southern Resources
$0.00

60 shares in Kaizen Hospitals
$60.00

Holroyd Private Hospital
$460,000.00

Staver Nominees
$5,000.00

1996 Land Rover Discovery
$50,000.00

1996 Land Rover Discovery
$52,000.00

1991 Mitsubishi Nimbus
$15,000.00

Loan – Paul Catts
$5,000.00

Practice Plant, Equipment, etc.
$30,000.00

Expectation of contribution from present wife
$250,000.00

Total
$2,317,060.00

90. This needs to be adjusted to take account of the fact that 63 Llewellyn Street, Rhodes was sold for $980,000.00 ($30,000.00 more than the estimate). No value was ascribed to the interest in the McIlwraith Unit Trust although it was apparent from the fact that it was included as a contingent liability that the project had commenced;

91. The defendant’s liabilities omitting in the plaintiff’s submissions provisional tax as being in the nature of a recurrent expense and the items at 12 relating to Family Law expenses and the item at 13 being the monies owed in respect of the Fairbrother loss, were:

Westpac mortgage over 63 Llewellyn Street, Rhodes
$600,000.00

Westpac mortgage over 51 Llewellyn Street, Rhodes.
$500,000.00

Westpac overdraft
$46,000.00

Westpac Mastercard
$1,000.00

Loan owing to Cheval
$17,700.00

Loan owing to Hopson
$42,000.00

Loan owing to Robyn Catts
$50,000.00

Debt to the plaintiff
$1,000.00

$1,257,700.00

92. The Defendant additionally disclosed at superannuation entitlements of $700,000.00.

93. The amount which was claimed to be owing to the Catts Superannuation Fund in respect of the Fairbrother’s loss, was $375,000.00. There does not seem to be a reason why this liability should be excluded. This would make the total liabilities $1,632,700.00.

53 The Master then made findings (Judgment [94]) establishing the total of the respondent’s assets and resources less liabilities at separation. With some modifications, including the $30,000.00 increase in assets in respect of 63 Llewellyn Street, Rhodes, and correcting a mathematical error, the respondent’s assets and resources were these:

Assets	$2,347,060
Resources (superannuation)	$ 700,000
TOTAL	$3,047,060
Less Liabilities	$1,632,700
NET ASSETS & RESOURCES	$1,414,360

54 As found and with these adjustments the total of the appellant’s property less liabilities at separation was $131,898.00 and she had a financial resource being superannuation to which was attributed $26,267.00. The respondent’s property less liabilities was worth $714,360.00 and he had a financial resource superannuation to which was attributed $700,000.00. Excluding superannuation the nett value of their property amounted to $846,258.00.

55 The Master found:-

96. The plaintiff's assets at the date of hearing consisted of the following:

1. One half interest in Foss Street Hunters Hill $500,000.00

2. Household effects $ 30,000.00

3. Car $ 18,000.00

$548,000.00

97. The plaintiff's present superannuation entitlements are as follows:

1. State super $ 96,005.00

2. P F Catts superannuation fund $119,244.00

$215,249.00

98. The plaintiff's present liabilities are as follows:

1. Loan from her father $45,000.00

2. Legal fees $33,000.00

3. Learn from her husband $31,850.00

4. Overdraft $ 7,000.00

5. Credit card $ 3,500.00

$120,350.00

99. This makes the net assets of the plaintiff, excluding superannuation, an amount of $427,650.00.

56 The Master also found:-

100. The present assets of the defendant are as follows:

1. Half interest Foss Street, Hunters Hill $500,000.00

2. Household effects $ 10,000.00

3. Paintings and watch $ 5,000.00

4. Practice plant and equipment $ 5,000.00

5. Units in the McIlwraith unit trust $255,156.00

6. Land Rover $ 18,000.00

$793,156.00

101. In addition, the defendant has his interest in the superannuation fund, which amounted to $940,486.00.

102. The defendant's present liabilities are as follows:

1. Westpac overdraft $ 43,925.00

2. Westpac loans secured over Foss Street $501,533.00

Total $545,458.00

57 I give this summary of these findings:

58 The house at Foss Street Hunter’s Hill was acquired in accordance with provisions of the Separation Agreement (Blue 74) to these effects. The parties were to purchase as joint tenants a new home for the occupation of the appellant and the children of their relationship. The cost was to be not exceeding $600,000.00, the appellant was to select the home, the respondent was entitled to use it for security for loans to him not exceeding 80% of the total value of the home and the appellant was to join in giving security, but the respondent guaranteed that he would meet the obligations under the mortgage, and he gave a second mortgage over other property to secure the guarantee. The appellant could require the home to be sold and another home purchased, but this did not happen. Each party was to make provision by Will for his or her interests to go to the children of their relationship and the respondent’s Will was to provide for the discharge of any mortgage. The appellant was never to let her interest in the property become available to any future partner or permit any future partner to acquire an interest in the property. The appellant was to have the absolute exclusive right to occupy the property during her lifetime. The contents of 63 Llewellyn Street, Rhodes were acknowledged to be the appellant’s sole property. There were provisions for child maintenance and payment by the respondent of hospital, medical and dental insurance expenses and school fees. The respondent was to pay Municipal rates, Land tax, Insurance and reasonable repair and maintenance. The Separation Agreement made many other provisions with less direct relationship to the house at Foss Street, Hunters Hill. As the Separation Agreement is to be set aside, the Foss Street house should be regarded as wholly arising from financial contributions made directly by the respondent, and the amount of the debt raised for his benefit and secured on the Foss Street house should be allocated wholly against his contribution.

59 In relation to the appellant’s assets at the time of hearing I observe that the calculation upon which $427,650.00 was based included attributing $500,000.00 to the value of her half interest in the house at Foss Street, Hunters Hill. This is a realistic valuation only because the Separation Agreement, and the significant restrictions which it imposed on the appellant, was set aside. On the respondent’s side, the Foss Street house was treated as an asset worth $500,000.00 and the Westpac debt secured over it was treated as a liability of his at $501,533.00 so that effectively each set-off the other. The value of his interest in the house would not have been available to pay off the Westpac debt if the Separation Agreement had not been set aside. If all the restrictions on the appellant’s interest in the Foss Street house under the Separation Agreement were brought into consideration the value of her interest as joint tenant would be far less than half the unencumbered value of the property; but it was conceded that the Separation Agreement should be set aside on her application; so the Master, correctly, approached adjustment of property interests on the basis that the restrictions did not apply. Nor do the advantages which the Separation Agreement gave to the appellant apply. The whole value of the appellant’s interest arose from contributions by the respondent.

60 It could be said that the interest of each was burdened by the mortgage debt. The Master treated that debt as wholly a liability of the respondent; and this was not contentious, although of course the mortgage burdens the whole property. The Master’s orders made provision for the discharge of the Westpac mortgage out of the proceeds of sale of the property; it was as well that its discharge was provided for.

61 The Master’s consideration took the form of surveying the contributions which each party had made, and did not take the form of attempting to value every kind of contribution, or (with an exception which I will mention), of tracing contributions directly or indirectly to the acquisition, conservation or improvement of identified assets. The Master followed s 20(1) of the Property (Relationships) Act 1984 and had regard to contributions of the kinds referred to in paras (a) and (b). It was not necessary and it was not possible to identify or to articulate fully the influence which the regard which the Master had to contributions had on deciding what order adjusting interests in property seemed just and equitable.

62 A decision applying s 20(1) must, after making findings establishing what was the property of the parties to the relationship at relevant times, and establishing what contributions of the kind referred to in paras (a) and (b) were made, reach the point of an evaluative determination about what order (if any) adjusting interests in property seems just and equitable. This is a discretionary decision not susceptible of complete exposition, and appellate review is limited. The principles which govern appellate review of discretionary decisions apply, and the appellate court should act with the restraint which those principles require, and is not otherwise entitled to review or to re-exercise the Master’s power of adjusting interests in property. In Gronow v Gronow (1979) 144 CLR 513 at 519-520, Stephen J made observations on the treatment by an appellate court of contentions that error in a discretionary decision consisted of not giving proper weight to a particular matter and said: "When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify a reversal can be due to little else but a difference of view as to weight, it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight."

63 The approach which the Court of Appeal should adopt is that expressed by Kirby P in Golosky v Golosky NSWCA (Unreported 5 October 1993 at pp13-14) in the passage which was approved in Singer v Berghouse (1994) 181 CLR 201 at 212 by Mason CJ, Deane and McHugh JJ in the context, not relevantly different, of the second part of the two-stage process in Family Provision cases. The passage was :-

64 The passage from the judgment of Kirby P in Golosky v Golosky cited in Singer v Berghouse was followed by this passage which is also important:-

Amongst judges there is an inevitable variation in attitudes towards the competing claims of testamentary freedom and the moral obligations upheld by the Act. An examination of reported and unreported decisions at first instance and in this court will bear out, as I believe, the differing emphases and the inclinations of judges as they approach the inescapably wide powers and discretions conferred upon them under the Act, as under its predecessor. Recognition of this fact provides a further reason for appellate restraint.

65 The discretion while wide is not unlimited; the perception of what is just and equitable relates to the contributions referred to in paras (a) and (b) and not to some other or wider view of just and equitable adjustment of interests in property. See Evans v Marmont (1997) 42 NSWLR 70 per Gleeson CJ and McLelland CJ in Eq., approving views of Mahoney JA in the majority in Wallace v Stanford (1995) 37 NSWLR 1 and in the minority in Dwyer v Kaljo (1992) 27 NSWLR 728 and in turn substantially approving the views of Hodgson J at first instance in Dwyer v Kaljo (1987) 11 Fam LR 785 at 793. It should I think be understood that in Evans v Marmont Meagher JA (at 98) agreed with this part of the judgment of Gleeson CJ and McLelland CJ in Eq.

66 What I understand to be established by the majority view in Evans v Marmont is to this effect:-

s 20(1)(b) would involve shared activities or reciprocal benefits which do not give rise to any disproportionate burden which it would be just and equitable to satisfy by an adjustment of interests in property.

67 Notwithstanding the strength of the dissenting judgments of Mason P and Priestley JA in Evans v Marmont, the course of judicial opinion leading to Evans vMarmont means, in my view, that earlier judicial consideration, including consideration in the Court of Appeal, of the significance of contributions in s 20(1) should not be treated as authoritative; this observation extends not only to Dwyer v Kaljo but also to Green v Robinson (1995) 36 NSWLR 96 and Theodoropoulos v Theodosiou (1995) 38 NSWLR 424. The history of diversity of opinion, two refusals of special leave to appeal to the High Court and convening a Court of Appeal of five members gives the majority decision in Evans v Marmont a special claim to authority. In particular, expressions of opinion in Green v Robinson no longer govern the application of s 20(1). I do not find any clear majority expression of view in Green v Robinson.

68 Identification of contributions falling within paras (a) and (b) is not an entirely objective exercise and may well have evaluative and discretionary elements as the path of decision proceeds through the identification of some matter as a contribution to determination whether its relationship to property or financial resources, or to the welfare of some relevant person, falls within para (a) or (b).

69 Contributions referred to in s 20(1)(b), including contributions in the capacity of homemaker or parent, should not be disregarded or undervalued. The need to recognise contributions by a wife "not in a token way but in a substantial way" was stated in relation to the Family Law Act in Mallet v Mallet (1984) 156 CLR 605 at 609 (Gibbs CJ) and has been applied to de facto relationships legislation by the Court of Appeal in Black v Black (1991) 15 Fam LR 109: see 117-118 (Clarke JA). In Green v Robinson Kirby P referred at 101-102 to these and other expressions of the need for substantial recognition of women's work, and what His Honour there said was not, in my respectful view, adversely affected by the later overruling of Dwyer v Kaljo.

70 In evaluating contributions under s 20(1)(b) it is relevant to have regard to income foregone or other opportunities lost while attending to functions as a homemaker or parent. The process is evaluation, not calculation of cost. Hodgson JA (with whom Ipp and McColl JJA concurred) said in Howlett v Neilson [2005] NSWCA 149 at para 36:-

Secondly, in my opinion, while s 20 does not authorise the making of orders by reason of perceived needs of a party to a de facto relationship, or by reason of opportunities lost to that party because of the relationship, it does permit the evaluation of contributions having regard not merely to the benefit of the contributions to the relationship and to the property of the parties, but also having regard to the cost of each contribution to the person making it. If, in a relationship involving the financial parameters indicated above, the woman spends the ten years as a homemaker rather than in developing skills and advancing a career, this may indicate that her contribution, although equal to that of the man in terms of benefit to the relationship and to the property of the relationship, is such as to make a substantial order just and equitable because of what it has cost the woman in terms of loss of opportunity for development of skills and advancement of a career.

71 In evaluating contributions it should be understood that parenthood, fulfilment of the responsibilities of parenthood and shared domestic life are undertaken for human purposes the fulfilment of which is rightly perceived as an advantage by those who take part, and in domestic and parental relationships there are many shared activities and many reciprocal benefits which do not give rise to any disproportionate burden of contributions which it would be just and equitable to carry forward (as it were) into a future adjustment of property interests. Shared domestic life and parenthood are pursued for their own sake. It is disproportion in contribution and burdens which engages a claim that an adjustment of interests in property is just and equitable. This element is alluded to, although not expounded, by citing Shakespeare’s song:-

Present mirth hath present laughter.

Evans v Marmont

72 The Master looked at contributions first in the period from 1984 until separation in 1997 and secondly in the period from that date until the hearing. The Master found that in the period up until 1997 both parties contributed their incomes to the relationship; evidence of the amounts of incomes and the contributions was not available. The Master found, correctly, that the respondent’s income would have been substantially greater than that of the appellant, but also said that until 1987 or thereabouts the respondent had to support his former wife and the children of his former marriage. He worked as a surgeon. On the other hand the appellant had time off work when the children were born and she often worked on a part-time basis. It is established elsewhere that the total of her periods of time off associated with caring for new-born children was twenty-two months, and that at other times on average she worked for about one-half of each working week. There is no precision in this material which can be carried to figures.

73 As to the period up to the separation the Master found:-

108. So far as non-financial contributions are concerned it is plain that the greater burden of those fell upon plaintiff. She had time at home when she was the principal carer for the children. The defendant was often away as a result of his many positions. As a result of the pressures of raising the family and the defendant’s very busy schedule the plaintiff says that she put off study to qualify as a psychiatrist. Since the separation she has substantially completed that training but her inability to do it earlier has meant that she has had 14 and half years when she worked simply as a career medical officer rather than as a psychiatrist. Her current salary is about $82,000.00 gross per annum and as a specialist she would normally expect to receive a salary of at least $150,000.00 per annum.

74 The Master then dealt with contributions from separation to the trial. In explaining why he took into account post-separation contributions the Master referred to Foster v Evans (unreported, Supreme Court of New South Wales, 31 October 1997) (Bryson J) where I decided that s 20(1)(b) does not limit consideration to contributions to the welfare of the family made during the period when there was a de facto relationship. The effect of what I said there was that contributions, including contributions made in the capacity of homemaker or parent, to the welfare of the family constituted by the parties and a child or children can be regarded although the contributions were made after the end of the relationship. In Jones v Grech (2001) 27 Fam LR 711 the Court of Appeal had regard to contributions made prior to the commencement of a de facto relationship. Observations and references to authority by Ipp AJA at [77-82], with which Davies AJA agreed - see [24-26] - have established that contributions made before commencement and after the end of the relationship may come under consideration. It should be understood that the dictum of Powell JA in Roy v Sturgeon (1986) 11 NSWLR 454 at 466 to the effect that it is not open to the court to have regard to contributions made prior to the commencement of the relationship has been disapproved. See too Nguyen v Scheiff (2002) 29 Fam LR 177 at 182 (Campbell J).

75 Foster v Evans related to contributions under s 20(1)(b). In the present case each party put forward for consideration contributions made since separation to acquisition conservation or improvement of the Foss Street house which would fall within s 20(1)(a), and it was not disputed that regard should be paid to them. As the assumption that contributions within s 20(1)(a) made after separation are relevant was not disputed, I accept it for the purpose of disposition of this appeal. Financial contributions may fall within s 20(1)(b). Arrangements and contributions relating to the acquisition of the Foss Street house under the Separation Agreement were substantially contemporaneous with the relationship although strictly later in time by several months, and in my view they fall within s 20(1)(a).

76 The Master accepted that the respondent had expended money pursuant to the Separation Agreement on the appellant and the children and for utilities in respect of the Foss Street property:-

114. …Over the relevant years he paid to the plaintiff $300.00 to $400.00 per week for child support plus private school fees and other expenses for the children. The total amount paid to the plaintiff on account of these items in the period was $175,816.00. For the children he paid directly a total sum of $185,750.00 and in respect of Foss Street he paid a total of $25,212.00. These sums do not include interest on the mortgage, which he has paid out of his own resources. Since he had the benefit of the borrowings these interest payments should not be taken into account.

77 The Master also accepted evidence about costs which the appellant has paid in relation to the children, totalling $377,760.00 and said:-

115. When one looks at the amounts paid by the defendant one has an approximate position of each party paying half the costs of the children except for school fees which were substantially met by the defendant.

78 The Master went on to find that the appellant has since moving into the Foss Street property carried out work and made a number of payments the costed elements of which total $59,500.00 for landscaping, repainting, air-conditioning, electrical work, built-in furniture, shower screens, internet telephone line and handsets and outlets, breakages and maintenance. The Master also found that the appellant paid other sums totalling $59,053.87 for many expenditures relating to furniture, and to comfort and security of the home; there are many items and they extend for example to security doors, household furniture and equipment and many others. The appellant paid for these from her earnings together with advances from her father and her husband. There is no evidence of what effect these improvements have had on the value of the house.

79 The Master also dealt with the contributions of the appellant to the care of the children and said:-

120. …It is perfectly plain that she had an enormous responsibility.

123. Clearly the care that the plaintiff has extended the children is substantial and it has been made more difficult for her as a result of her illnesses and the particular problems from which the children suffer.

124. It is the contribution that the plaintiff has made in both periods by her efforts in looking after the children, which must be recognised in a substantial, and not a token way.

80 The contributions made by the appellant in meeting burdens of care for the children since the end of the relationship outweigh those of the respondent. Her contributions were described by the Master as an enormous responsibility and he said, correctly, that they must be recognised in a substantial and not a token way. Her contributions greatly outweigh the contributions made by the respondent in school fees and also in his attendances to needs and welfare of the children; his evidence shows that he gave time and attention to the children’s welfare, but overall the contributions made by the appellant greatly outweigh his and have a strong claim for recognition when regard is paid to them and consideration is given to adjusting the interests of the parties in property.

81 The Master dealt separately with the interests of the parties in superannuation.

82 In Green v Robinson Kirby P said (at 103), when discussing differential entitlements to superannuation:-

It is as erroneous to ascribe the superannuation payments to the separate and differentiated income of the parties, as it is to ignore superannuation altogether. Despite equal pay legislation, and industrial decisions to the same end, it is well-known that in Australia, female earnings are typically lower than male earnings. Inherent in the notion that each “owns” the superannuation entitlements accumulated from his or her income, is an inescapable bias against vulnerable (usually female) members of a marriage or marriage-like relationship. This is a bias which the Act, far from condoning, forbids. By s 3(1), the Act requires, in relation to “de facto partners or either of them”, that the financial resources, which must be taken into account under s 20(1) of the Act, are to include entitlements under a superannuation scheme. This is therefore something which, in the exercise of the s 20(1) discretion, the Court must view as belonging not to Mr Robinson separately however he actually banks or notionally receives the contingent benefit, but to the financial resources of the parties which need to be adjusted, having regard to the contributions “made directly or indirectly” by them. Conformably with the language of the Act and applicable jurisprudence which has developed in the Family Court on analogous problems, it is my view that Ms Green made an indirect contribution to Mr Robinson’s superannuation entitlements. Just as he did to hers. The only difference is that his entitlement was more substantial. This was because of its longer duration and because of his higher base income.

83 Kirby P was in dissent in Green v Robinson and the views of the majority Powell JA and Cole JA do not appear to be uniform. In Green v Robinson the s 20(1)(b) contributions did not, in the views of the majority, lead to any disproportion or adjustment. In the opinion of Powell JA superannuation entitlements are not property which needed to be or could be adjusted in the sense of being directly affected by an order under s 20; part of the basis of this view was:- (108 – 109)

De Facto Relationships Act

De Facto Relationships Act,

De Facto Relationships Act.

84 Cole JA proceeded on a different view: at 118, while referring to superannuation, Cole JA said:

Whilst the Act requires that the value of superannuation entitlements be considered in the exercise or any discretion pursuant to s 20, I am not persuaded that there is any evidence which would support a view that the entitlement of either the appellant to her superannuation, or the respondent to his results otherwise than from contributions each has severally made. There is no evidence to suggest that the appellant made any contribution, direct or indirect, to the respondent’s present superannuation entitlement, it being a deduction from his service pay. A similar situation pertains to the appellant’s superannuation.

85 In my understanding Cole JA required some evidence-based demonstration of traceable contributions, direct or indirect, to the funds which gave rise to the entitlement to superannuation; it was Cole JA's view that was that there was no such contribution because those funds were a deduction from the man’s service pay. Powell JA’s judgment gives me to understand overall that his Honour made a more exacting requirement than Cole JA for demonstration of the connection between the claimant's contribution and another party's superannuation entitlement. It should be said of all views expressed in Green v Robinson that they were expressed without the benefit of the settlement of the law in Evans v Marmont. In my respectful view the passage I have cited from the judgment of Kirby P in Green v Robinson is a correct exposition.

86 In Powell JA’s dissenting judgment in Gazzard v Winders (1998) 23 Fam LR 716 at 722-723 his Honour referred to Green v Robinson and treated this statement (722/49 – 723/1) as expressing what was established by the judgments of Powell and Cole JJA in Green v Robinson:-

… unless there was evidence which enabled the Court to form the view that there had been a contribution by the appellant to the respondent’s superannuation entitlement, that entitlement could not be taken into account when determining what order it was proper … to make in favour of the appellant.

Green v Robinson

Wallace v Stanford

Evans v Marmont

Wallace v Stanford

Evans v Marmont

87 This appears clearly from the outcome under the majority judgments of Gazzard v Winders [1998] 23 Fam LR 716 to which the Master referred. In that case Beazley JA referred to observations of Powell and Cole JJA in Green v Robinson and to there to being no evidence, in Gazzard v Winders, that the appellant had made any contribution to the respondent's pension or superannuation entitlements, but went on to say:-

Notwithstanding that if there was any contribution by the appellant to the respondent's contributory scheme it was only small, it is still relevant to consider the respondent's pension and superannuation entitlement against the background of the way in which the parties dealt with their several incomes and assets, mainly as available for their joint use.

88 It is quite usual for the Court of Appeal to take a global view in which contributions made directly or indirectly to acquisition, conservation or improvement of some identifiable property or financial resource is regarded when deciding to make an adjusting order which is to be satisfied out of some different property or financial resource; this global view rather than detailed adjustment item by item is often favoured by practicality, and by the Court’s duty under s 19 to determine finally financial relationships and to avoid further proceedings. The global view taken by the majority in Gazzard v Winders is the usual course. In my opinion the global view is justified by s 20, the terms of which contain nothing, in my opinion, to indicate that the burden of adjustment may fall only on property or on a resource to which contribution was made.

89 Nothing in the terms of s 20 or of the Act generally means that it is necessary, if an item of property or a financial resource is to be the subject of an order adjusting interests, that a contribution either of the kind described in s 20(1)(a) or of the kind described in s 20(1)(b) should be traced to that particular item of property or resource. Section 20(1) speaks in terms of contribution to acquisition, conservation or improvement of property in para (a), but the contributions referred to in para (b) are not by the terms of s 20(1) related to identifiable items of property and in their nature they could not usually be traced into or otherwise related to identifiable items of property. The words of s 20(1) which precede paras (a) and (b) contain no expression which requires an order adjusting interests in property to reflect or give effect to contributions to the particular piece of property interests in which are adjusted; what is required is that the Court have regard to the contributions; there may be a connection, but there is no necessary connection, and there may not necessarily be a discernible connection among a contribution, a piece of property and an adjusting order.

90 In my opinion the respondent’s superannuation entitlements, which clearly are a financial resource having regard to the definition in s 3(1), are also “property” within the widely extending definition of inclusion also found in

"...That the parties are each entitled to retain their superannuation which is held under their own names, to the exclusion of the other party."

91 Superannuation entitlements cannot be readily valued, and it is unreliable to think of them as valued at the sums which appear as Member’s Entitlements in statements from Superannuation Funds. There are choices and contingencies and often intervals of time between the date of the statement and the time of realization, and restrictions on the manner of realization. It may not be easy for the Fund to raise ready money, and its investments may take forms more appropriate to production of a stream of income than a short-term realization. Superannuation entitlements are like Fairy Gold in that they may diminish or disappear if an attempt is made to seize them. The difficulties of understanding their worth are increased in the present case because the value of the assets in the respondent’s private Superannuation Fund depends on business contingencies which are yet to be worked out and may end well or badly.

92 The Master expressed a view about the contribution which the appellant had made to the respondent’s superannuation in the following paragraph (Red 46):-

131. In this case it would seem that there is very little evidence of contribution to superannuation by either party, except perhaps for the two years when the plaintiff was at home on a full-time basis looking after children. In these circumstances there would be a small contribution by her to the defendant’s superannuation. The defendant’s superannuation increased from $93,351.00 to $700,000.00. over a period of the relationship, which was a period of some 13 years. There was thus a contribution of about $95,000.00 to the defendant’s superannuation.

93 This passage was criticised by the appellant's counsel in several ways. The criticisms were to the effect that the Master had derived a figure of $95,000 by taking 2/13ths of the period of the relationship, and that this reasoning was flawed. It was part of the criticism offered that the last sentence should be read as if it had said:-

of

This reading is assisted by the terms of para 135 of the judgment; but I do not see any significance in the choice of expression. It appears from findings elsewhere that the appellant did not work but stayed at home full-time for 22 months looking after the children, not exactly for two years. 2/13ths of the increase in superannuation referred to is $93,330.00. The word "thus" suggests that the Master had used some mathematical process to derive $95,000, but earlier words in para 131 show that he had not; he said “except perhaps” and did not confidently adopt reasoning relating to two years at home on a full-time basis. Counsel contended that the terms of para 131 showed that the Master had, in assessing the appellant's contribution, brought into account the two years that the appellant was at home on a full-time basis looking after children, but failed to bring into account the other 11 years when the appellant worked effectively for half of each working week because she had the care of the children. Underlying this was some arithmetic in which counsel showed that $95,000 is close to 2/13ths of the increase in the respondent’s superannuation over the period of the relationship; from which counsel contended for the conclusion that the Master had reasoned that the appellant had contributed the increase in the value of the respondent’s superannuation for two of the 13 years.

94 The Master did not express such reasoning; the reasoning is grossly defective and it should not be attributed to him. The period for which evidence established the appellant was at home on a full-time basis looking after children was in fact 22 months. Reasoning which attributes to her a contribution worth the whole of the increase in the value of the resource for 2/13ths of the period and none of the value of the increase for the remaining 11/13ths of the period appears to me to be altogether and obviously quite groundless. The Master did not articulate the 2/13ths line of reasoning and I see no reason to attribute anything so strange to him. I see the eduction of $95,000 as an exercise of judicial wisdom, without a basis in mathematical reasoning and inherently incapable of any persuasive basis in mathematical reasoning. The Master left the basis of the assessment of $95,000 unexplained; I am at a loss to see any other or better process for reaching a conclusion on that matter, and an attempt to reduce to arithmetic the assessment of the contribution made by the appellant staying at home and contributing to the family welfare to the respondent’s superannuation resources by some detailed process or calculation could not improve on the simple one-step process of evaluation which the Master used. There are many stages in the course of disposing of civil proceedings where resort to judicial wisdom and experience for evaluating in money terms something which has no essential relation with money and commercial dealings is the only means available; such assessments must often be required in coming to decision under s 20.

95 The only point at which the Master’s judgment mentions access to or use of the proceeds of superannuation is:-

132. In her submissions the plaintiff sought to receive a transfer of the defendant’s interest in the Foss Street property and a provision that over a period of some two years he thereafter discharge the mortgage over the property. It was submitted that he would be able to do this because by the time he was 65 he would have access to his superannuation entitlements.

96 The appellant’s position before the Master and again on appeal, stated broadly, was that the appellant should receive the transfer of the respondent’s interest in the Foss Street house and he should be required to discharge the mortgage over it, which he could only do by realising funds from his superannuation. The Master did not adopt this submission and his orders did not require or assume that the proceeds of the respondent’s superannuation entitlements would be used in any identifiable way. The Master said:-.

140. A sale of Foss Street will result in the discharge of the mortgage of $501,533.00 and a final separation of the parties’ financial affairs at this time.

142. The parties are otherwise to retain their separate property and superannuation.

97 I have no doubt of the Court's power to adjust interests in superannuation entitlements when making an order under s 20. Superannuation entitlements can take many forms and they exist in complex skeins of legal regulation, both of superannuation funds and of taxation law, which create legal, revenue and financial difficulties for realising proceeds of superannuation entitlements. The respondent has recently attained the age of 65, which no doubt simplifies his access to superannuation funds but does not resolve all the difficulties, including revenue difficulties. In relation to a person of his age the Court would usually have considerable reluctance about requiring disposition of superannuation funds, and would not do so if a just outcome could be produced by other dispositions of property and resources.

98 The appellant contended before the Master to the effect that the appropriate judgment was:

(a) the respondent transfer to the appellant his interest in the property at 3 Foss St Hunters Hill; and
(b) upon becoming entitled to his superannuation entitlements the respondent discharge the existing mortgage or discharge such a lesser portion thereof as is necessary to adjust the interest of the parties in a just and equitable manner.

99 In effect the appellant asked that the respondent be required to raise enough money to discharge the mortgage out of his superannuation entitlements; a task which it would be for him to accomplish without the court taking control in detail of the manner in which he realised money from his superannuation entitlements. By the time the appeal came on for hearing the respondent had turned 65 years of age, and counsel asserted, rather baldly "As such, he is entitled to draw on the fund". It was asserted that various provisions of the Superannuation Industry Supervision Regulation gave opportunities for the respondent to cash his superannuation entitlements.

100 The respondent argued before the Master that there should be an adjustment which gave the appellant 40% of the value of the assets of the parties at the time of separation. Calculations were presented in which the adjustment in the appellant’s favour was $171,643.40, adjusted to $207,224.54 having regard to changes in the value of money by the time of the hearing. There were some variations in what was put, and the maximum adjustment for which the respondent contended was $249,479.40. In this calculation the value of superannuation funds was not brought under consideration, no contribution by the appellant to the respondent’s superannuation was brought under consideration and there was no recognition of the enormous burden of care for the children which the appellant has borne since the separation. In discussion of the orders to be made the Master noted that the appellant had the benefit of occupying the Foss Street property since 1997; and also noted that it was home for the children for almost all that period, and that she had an entitlement to occupation under the Separation Agreement. The appellant also received a car under the Separation Agreement; the Master had regard to this.

101 The Master said:-

Plaintiff

Defendant

139. The plaintiff’s net assets have increased as a direct result of the separation agreement. The defendant’s assets have decreased no doubt in part due to the fact that he has had two families to support.

102 The adjustment of interests which the Master ordered was:-

142. In the circumstances, taking into account all the matters to which I have referred earlier in this judgment and the evidence in the case which I have considered again, I think that an appropriate order is that the Hunters Hill property be sold and that the plaintiff receive 4/5ths of the net proceeds after discharge of mortgage and that the defendant receive 1/5th of such proceeds. The parties are otherwise to retain their separate property and superannuation. I direct the parties to bring in short minutes.

103 The Master's order provided, at its core, for sale of the Foss Street house, discharge of the Westpac mortgage out of the proceeds of sale and distribution of 4/5ths of the net proceeds to the appellant and 1/5th to the respondent. The figures for value and debt in the Master’s reasons suggest that the appellant will have less asset value after the sale than before, as she will receive $400,000.00 in substitution for her interest in the Foss Street house treated as worth $500,000.00. I do not see this as a disadvantage of $100,000.00, in view of the many qualifications to which her interest in the Foss Street house would be subject if the order did not set aside the Separation Agreement under which she acquired it. In my perception her interest, nominally valued at $500,000.00 has arisen substantially from contributions made by the respondent to the acquisition of the house. (His contributions are not the only source, as the appellant expended some moneys on improvements and otherwise in relation to the house). There will be a marked enhancement of the position she was in at separation. There is a large advantage in finality.

104 The Master referred to its being preferable that there be a final resolution of the party's financial affairs and said that he had regard to the present net pool of assets of $675,348.00 “noting that it has probably been reduced by the defendant’s support of a second family." The Master did not at this part of his discussion refer to the parties’ superannuation interests, but he was fully seized of them as appears from earlier passages in the judgment.

105 There is a strong case for a just and equitable adjustment because of large contributions made by the appellant in different ways over about 20 years. I see no justification for a disposition of the kind for which the appellant's counsel argued, in which the Foss Street property would pass unencumbered to the appellant and the respondent would be required to find the money to pay off the Westpac mortgage without recourse to the property. That would be an altogether excessive adjustment. There would have been advantages in some resolution in which the whole interest in the house property passed to the appellant but she was required in some way to bear the burden of the mortgage on it. Under the orders which the Master made it is conceivable that she might seek some arrangement in which she refinances the debt on the house and finds enough money to pay out the respondent; that can only be done by agreement. The range of adjustments which were reasonably available for the Master to decide to make was quite wide; the decision was a discretionary one, and cannot be upset simply on the basis that the Court of Appeal is of the view that it would have made some different disposition.

106 There was no real exposition of why it was contended that it was erroneous for the Master, in the exercise of the power in s 20(1), which is discretionary, to decide that the appropriate adjustment was to make dispositions of the Foss Street house property in terms which would produce 4/5ths of the proceeds net of discharging mortgage (and on the valuation before the Master a figure in the order of $400,000) but otherwise to leave the parties to their existing rights to their property and financial resources; or why the appropriate adjustment which the Court of Appeal should order was one in which the appellant instead of her co-ownership interest in a house worth about $1 million mortgaged for about $500,000 should receive the house unencumbered. That would bring about enhancement of her property interests in the order of $750,000 on the basis that before the adjustment she had a co-ownership interest in the property, the property was mortgaged, and the provisions of the Separation Agreement which justify thinking of the mortgage debt as the obligation of the respondent in particular were set aside. In the context of the resources of the parties generally and of the contribution which the appellant claimed to have made to them such an adjustment appears to me to be entirely out of scale with the appropriate workings of s 20(1).

107 It would take a strong claim of justice indeed to justify an order which had the effect of compelling the respondent, at the point where he turns 65 years of age and receipt of superannuation benefits can begin, to raise a large sum out of superannuation entitlements and use it to discharge the mortgage so as to confer unencumbered ownership of the house property on the appellant. In my understanding the appellant’s counsel did not at any point offer any submission which would justify the view that such a large adjustment of property interests in favour of the appellant was appropriate; I bear in mind that the financial contributions to the acquisition of the Foss Street house were entirely made by the respondent. By far the larger part of the contributions made by the appellant were of the kinds referred to in s 20 (1)(b) which are difficult to evaluate; there must be appropriately regarded, in the adjustment of property interests, but the benefit which would flow to the appellant under the Master's order was in the order of $400,000 out of the proceeds of sale of the house for which she had not contributed any purchase money, and this was quite a large adjustment.

108 While under the Master’s disposition, and in the disposition which I propose, the respondent’s superannuation resources are left untouched, a clear view must be kept of the advantages to the respondent which his superannuation resources, and of the decision to leave them untouched, confer on him. The course of events and of his investments since the separation have directed his resources towards superannuation and he has relatively little interest in property otherwise, compared with property interests which he held at earlier periods. A decision against dealing with his superannuation by an order of the Court does nothing to disarm readiness to marshal other assets when choosing how to make adjustment in favour of the appellant.

109 Submissions by counsel to the appellant appeared to be directed foremost at establishing a basis on which it was appropriate to require marshalling the respondent's financial resources in superannuation into discharging the house mortgage in the interests of the appellant; and in relation to that, establishing a basis on which it was appropriate to see the appellant as having made a contribution to the respondent’s superannuation; this I suppose would enhance the claim to marshal the value of the superannuation entitlement into producing an adjustment for the benefit of the appellant.

110 In dealing with superannuation the Master said in his judgment:-

125. The plaintiff submitted that because the defendant contributed to his own private superannuation scheme such contributions were in the nature of savings to which the plaintiff was making an indirect contribution.

111 The Master then considered judgments in Green v Robinson, to which I referred earlier and said at [128]:

It is not easy to reconcile the different views but it would appear from the comments of Powell JA and Cole JA that there must be some factual matter which enables one to form the view that there had been a contribution to a spouse’s superannuation entitlements. A common example of this would be a partner who stayed at home to look after children thus enabling the other partner to go to work and earn a superannuation entitlement.

112 The Master also referred to Gazzard v Winders and then said (Red 45):

In the Marriage of Hickey

131 In this case it would seem that there is very little evidence of contribution to superannuation by either party, except perhaps for the two years when the plaintiff was at home on a full-time basis looking after children. In these circumstances there would be a small contribution by her to the defendant’s superannuation. The defendant’s superannuation increased from $93,351.00 to $700,000.00 over the period of the relationship, which was a period of some 13 years. There was thus a contribution of about $95,000 to the defendant’s superannuation.

113 In my opinion the Master was correct to treat a partner who stays at home to look after children thus enabling the other partner to go to work and earn a superannuation entitlement as making a contribution to that superannuation entitlement. There is great difficulty in quantifying any such contribution; quantification in a money amount should take place if it can take place but is not essential for carrying out the process of deciding on an adjustment under s 20(1) and having regard to non-financial contributions under para (b) in the course of so doing. I do not think that it is correct to characterise the Master's treatment of superannuation by saying that the Master regarded himself as only able to bring superannuation to account to the extent that some evidence was available of a direct or indirect contribution to it.

114 The respondent has reached an age where it would be reasonable for him to end his working career, and it can be expected that it will end in the next few years. On the other hand the appellant has a period in the order of 15 years and perhaps longer of a highly qualified professional career during which she can reasonably look forward to accumulating superannuation entitlements. These considerations appear to me to make it appropriate, when addressing what adjustment of interests in property it is just and equitable to order, to direct the burden of any adjustment away from the respondent's superannuation entitlements. It is not really possible to see clearly what effect on the respondent's superannuation entitlements or on his position overall would be produced by an order which directly required or less directly produced the effect that he had to raise large funds out of his superannuation entitlement; the taxation implications cannot be clearly seen, even if it could be clearly understood whether the terms of the constitution of his superannuation fund and to the terms of the Superannuation Industry Supervision Legislation enable him to raise some particular amount out of it. It was appropriate for the Master to take a global view and direct the burden of the adjustment away from the respondent's superannuation entitlements.

115 The Master found that the respondent's interest in his superannuation fund at the time of the hearing amounted to $940,486.00 (Red 35(A)). How much of this was undeducted contributions, available to be withdrawn without adverse taxation consequences, was not the subject of evidence or finding although the respondent put in evidence (Blue 210) a Member’s Statement for a superannuation fund for the year to 30 June 2003, more than a year before the hearing, which showed a withdrawal balance of $544,859.47 of which $171,151 was undeducted contributions. If that amount is taken (and I do not think it should have been) as the amount of the undeducted contributions readily available the disposition by the respondent or by an order under s 20(1), the amount of the undeducted contributions fell far short of the money which the respondent would be required to raise if, as the appellant contended, the respondent was to be ordered to pay off all the mortgage debt.

116 Counsel for the appellant submitted that it is (t7/20) “… tolerably clear that what the Master has done is treated the superannuation as not being able to be brought to account except into the extent to which he could find that there has been a contribution of the Green v Robinson kind.” I do not accept this submission. In my view it is clear from the Master's expressions overall that the Master was aware that a global approach was also available; this is shown by the citation of Gazzard v Winders.

117 I can see another outcome which was well within the range of discretionary decisions open to the Master, which might have presented itself forcefully to me if I were considering the matter at first instance. An order in which the appellant received the house property with the burden of responsibility for the mortgage, leaving the respondent with no further interest in or liability relating to the house property, and without any opportunity to raise mortgage funds on it, could well have been thought to be the appropriate outcome. To say this however does nothing to demonstrate that the Master’s decision was erroneous or should be re-opened on appeal.

118 There are considerations which favour a remedy and an order which makes for relatively simple disengagement of the parties’ property interests, as against an order which may require an extended or complex chain of decisions and conduct by one or both, or may involve the court in detailed supervision or enforcement of its order. The Master’s order achieves this, and an order which required the respondent to raise funds out of his superannuation entitlement would not. A need for the respondent to address the terms of his superannuation funds, requirements of Superannuation Industry Supervision legislation and revenue implications is potentially a source of a series of decisions for him to make involving judgments about his own best interests, and is potentially a source of the delay: fertile ground for justifications of inaction. It is better to avoid opening up such potentialities, and the Master’s order did this. By arrangement the parties could achieve the results which the order would achieve in a different way: the appellant can if she wishes and is able to do so finance acquisition of the house herself, and pay out the Westpac mortgage and sufficient money to satisfy the respondent; if the parties can arrange that they should, but the Court should not undertake to bring that result about.

119 In my opinion the Court of Appeal should order:-

120 HUNT AJA: I agree with Bryson JA that, for the reasons he has given, the opinions expressed by this Court in Green v Robinson (1995) 36 NSWLR 96 no longer govern the application of s 20(1) of the Property (Relationships) Act 1984. I agree with Hodgson JA that, if those opinions are interpreted as deciding that a party's superannuation entitlements can be taken into account in determining what order is appropriate only if and to the extent that the other party had contributed to that entitlement, those opinions are wrong and should not be followed.

121 The issue between the other members of the Court in this appeal is whether Master Macready accepted that interpretation and applied it in his judgment in this case. On this issue, I agree with Hodgson JA that he has done so.

122 I agree with the orders proposed by Hodgson JA, for the reasons he has given.

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Citations

Chanter v Catts [2005] NSWCA 411

Most Recent Citation

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Davis v Davis [2024] NSWCA 222

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11

Statutory Material Cited

2

Jones v Grech [2001] NSWCA 208

Howlett v Neilson [2005] NSWCA 149

Jones v Grech [2001] NSWCA 208

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CITATION:	CHANTER v CATTS [2005] NSWCA 411
HEARING DATE(S):	22-09-2005
JUDGMENT DATE:	25 November 2005
JUDGMENT OF:	Hodgson JA at 1; Bryson JA at 44; Hunt AJA at 122
DECISION:	Appeal allowed, orders varied: see [43]

CATCHWORDS:	DE FACTO RELATIONSHIPS - adjustment of interests under s.20 of Property (Relationships) Act - by majority, appeal allowed and further adjustments ordered - observations on operation of s.20 where superannuation entitlements are a financial resource - no necessary relationship between contribution to financial resource and incidence of adjustment on property - views of Powell and Cole JJA in Green v Robinson disapproved: see Hodgson JA at [20]-[21] Bryson JA at [82]-[90] David Hunt AJA at [120].
LEGISLATION CITED:	Property (Relationships) Act 1984 (NSW), ss 3(1), 20 De Facto Relationships 1984, ss 46, 47(1) & (2), 49 (1)
CASES CITED:	Green v. Robinson (1995) 36 NSWLR 96 Gazzard v. Winders (1998) 23 FamLR 716 Lyman v. Lyman (1989) 13 FamLR Jones v. Grech [2001] NSWCA 208, 27 FamLR 711 Howlett v. Neilson [2005] NSWCA 149 Gronow v Gronow (1979) 144 CLR 513 Golosky v Golosky NSWCA (Unreported 5 October 1993) Singer v Berghouse (1994) 181 CLR 201 Evans v Marmont (1997) 42 NSWLR 70 Wallace v Stanford (1995) 37 NSWLR 1 Dwyer v Kaljo (1992) 27 NSWLR 728 Theodoropoulos v Theodosiou (1995) 38 NSWLR 424 Mallet v Mallet (1984) 156 CLR 605 Black v Black (1991) 15 Fam LR 109 Foster v Evans (unreported, Supreme Court of New South Wales, 31 October 1997) Roy v Sturgeon (1986) 11 NSWLR 454 Nguyen v Scheiff (2002) 29 Fam LR 177
PARTIES:	Maree Eve Chanter - Appellant Peter Frederick Catts - Respondent
FILE NUMBER(S):	CA CA 40281/2005
COUNSEL:	Mr C.M. Simpson with Ms D Ward - Appellant Mr M Broun QC - Respondent
SOLICITORS:	Adrian Twigg & Co - Appellant Stuart Fowler & Partners - Respondent

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	ED 3690/2002
LOWER COURT JUDICIAL OFFICER:	Master Macready

PROPERTY
Westpac Classic A/c	$13,000.00
Cash	$200.00
Kaizen Hospitals	$25.00
Holroyd Private Hospital	$120,000.00
Debt due by defendant	$1,000.00
TOTAL PROPERTY	$134,200.00

LIABILITIES
Credit cards	$2,302.00
Property	$134,200.00
Superannuation	$26,267.00
$160,467.00
Less Liabilities	$2,302.00
TOTAL PROPERTY & RESOURCES	$158,165.00

63 Llewellyn Street, Rhodes	$950,000.00
5/15 Parnell Street, Strathfield	$250,000.00
51 Llewellyn Street, Rhodes (50%)	$250,000.00
6,000 shares in Southern Resources	$0.00
60 shares in Kaizen Hospitals	$60.00
Holroyd Private Hospital	$460,000.00
Staver Nominees	$5,000.00
1996 Land Rover Discovery	$50,000.00
1996 Land Rover Discovery	$52,000.00
1991 Mitsubishi Nimbus	$15,000.00
Loan – Paul Catts	$5,000.00
Practice Plant, Equipment, etc.	$30,000.00
Expectation of contribution from present wife	$250,000.00
Total	$2,317,060.00

Westpac mortgage over 63 Llewellyn Street, Rhodes	$600,000.00
Westpac mortgage over 51 Llewellyn Street, Rhodes.	$500,000.00
Westpac overdraft	$46,000.00
Westpac Mastercard	$1,000.00
Loan owing to Cheval	$17,700.00
Loan owing to Hopson	$42,000.00
Loan owing to Robyn Catts	$50,000.00
Debt to the plaintiff	$1,000.00
$1,257,700.00