Dowdell & Public Trustee of the Northern Territory

The case of *Dowdell & Public Trustee of the Northern Territory* concerned a property settlement dispute between a wife and the Public Trustee of the Northern Territory, substituted as a party following the husband's death. The marriage had lasted almost 50 years. The husband was in receipt of a Defence Force Retirement and Defence Force Benefit (DFRDB) pension and had taken his own life while terminally ill. The wife sought to include the benefit of this pension in the asset pool for property settlement. The parties had also built a home on land owned by their daughter and son-in-law, with their interest in the property governed by a licence agreement.

The court was required to determine several legal issues. Firstly, whether the husband's death, particularly his intentional act of taking his own life, was designed to deprive the wife of the benefit of his pension, and if the principles in *Kowaliw and Kowaliw* applied to notionally add the pension back to the asset pool. Secondly, the court had to consider the wife's equitable position in the property built on her daughter's land, should the licence agreement prove unenforceable, and whether this equitable interest should be included in the asset pool. Thirdly, the court had to assess whether a superannuation splitting order could be made in relation to the husband's DFRDB pension, given that his interest in the scheme ceased upon his death and no interest vested in his estate, and if so, whether it could have a retrospective operative date prior to his death. Finally, the court needed to consider the impact of the husband's post-traumatic stress disorder and his general behaviour on the assessment of contributions and whether any adjustment under section 75(2) of the *Family Law Act 1975* (Cth) was warranted.

Strickland J reasoned that there was no evidence to suggest the husband's death was an intentional act to deprive the wife of his pension, and therefore the principles in *Kowaliw and Kowaliw* were not applicable. The DFRDB pension ceased upon the husband's death and no interest vested in his estate, meaning there was no superannuation interest in existence at the time of making a section 79 order. Consequently, a splitting order could not be made, nor could the pension be notionally added back to the asset pool. Regarding the property built on the daughter's land, the court found that the wife's equitable interest in the property, despite the licence agreement, should be included in the asset pool. In assessing contributions, the court applied the principles in *Kennon and Kennon*, finding that contributions should be assessed as equal. However, a 15% adjustment was made in favour of the wife due to factors under section 75(2).

The court ordered that the assets be divided 65% in favour of the wife and 35% in favour of the husband's estate.