Ebeid & Bardim

[2021] FCCA 514

FEDERAL CIRCUIT COURT OF AUSTRALIA

Ebeid & Bardim [2021] FCCA 514

File number(s):

BRC 4008 of 2014

Judgment of:

JUDGE TONKIN

Date of judgment:

17 March 2021

Catchwords:

FAMILY LAW – Property – adjustment of property interests under section 90SM of the Family Law Act 1975 (Cth) – consideration of section 90SF(3) of the Family Law Act 1975 (Cth).

Legislation:

Family Law Act 1975 (Cth), ss 4, 39B, 90RD (1), 90RD (2), 90SF (3), 90SM (1), 90SM (3), 90SM (4)

Cases cited:

In the Marriage of Ferraro (1993) FLC 92-335; Clauson & Clauson (1995) 18 Fam LR 693

In the Marriage of Lee Steere (1985) FLC 91-626

Russell v Russell (1999) FLC 92-877.

Stanford v Stanford [2012] HCA 52;

T & T [Pension Splitting] [2006] FamCA 207

Watson & Ling [2013] FamCA 57

Number of paragraphs:

47

Date of last submission/s:

5 March 2021

Date of hearing:

5 March 2021

Place:

Brisbane

Counsel for the Applicant:

The Applicant appeared in person

Solicitor for the Respondent:

Arshad & Chand Lawyers

ORDERS

BRC 4008 of 2014

BETWEEN:

MS EBEID

Applicant

AND:

MR BARDIM

Respondent

ORDER MADE BY:	JUDGE TONKIN
DATE OF ORDER:	17 MARCH 2021

THE COURT ORDERS THAT:

1.In accordance with paragraph 90XT (1) (a) of the Family Law Act1975 (Cth) whenever the Trustee of the C Super Fund (“the C Super Fund”) makes a splittable payment out of the interest held by the respondent (Mr Bardim) in the C Super Fund the Trustee shall:

(a)Pay to the applicant (Ms Ebeid) or her administrators, executors, beneficiaries or assignees the entitlements calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations2001 (Cth) using the base amount; and

(b)Make a corresponding reduction in the entitlements the respondent (Mr Bardim) would have had in the C Super Fund but for these orders.

2.Pursuant to section 90XT (4) of the Family Law Act1975 (Cth) a base amount of $50,000 (fifty thousand dollars) (“the base amount”) is allocated to the applicant (Ms Ebeid) out of the respondent’s (Mr Bardim) interest in the C Super Superannuation Fund.

3.The Trustee of the C Super Fund shall do all such acts and things and sign all documents as may be necessary to:

(a)calculate in accordance with the requirements of the Family Law Act1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth) the entitlement awarded to the applicant pursuant to Orders 1 & 2 hereof; and

(b)pay the entitlement to the applicant whenever the Trustee makes a splittable payment from the respondent’s superannuation interest in the C Super Fund.

4.The operative time for these orders is four days after a sealed copy of these orders has been served upon the Trustee.

5.The applicant and respondent shall cause a copy of these orders to be served upon the Trustee of the C Super Fund within 28 days.

6.Orders 1 to 3 are stayed pending the Court receiving confirmation from the applicant or respondent by email correspondence that the Trustee of the C Super Fund has received a copy of these orders and does not wish to intervene in the proceedings nor be heard in relation to the form of the splitting order.

7.Upon receipt of confirmation that the Trustee of the C Super Fund takes no issue with the form of the splitting order the stay order shall be lifted.

8.Each party shall retain to the exclusion of the other party all real and personal property in his or her possession or control at the date of these orders.

9.Each party shall indemnify the other party and keep that party indemnified with respect to any liability in his or her name as at the date of these orders.

10.If either party refuses or neglects to sign or execute any document then the Registrar of the Brisbane Registry of the Family Court is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act 1975 to sign or execute such document in the name of the defaulting party and do all acts and things necessary to give validity and operation to these orders.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Ebeid & Bardim is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE TONKIN:

INTRODUCTION

1. This matter involves a property dispute between de facto partners heard on 5 March 2021. The applicant was self – represented while the respondent was represented by a solicitor. The only property available for division in any realistic sense was the respondent’s interest in superannuation.

   LEGAL PRINCIPLES

2. Pursuant to section 39B of the Family Law Act 1975 (Cth) the Court has jurisdiction with respect to matters arising under the Act in respect of which de facto financial causes are instituted under the Family Law Act 1975 (Cth). Part VIIIAB of the Act deals with financial matters relating to de facto relationships. Under section 4 of the Act a de facto financial cause means relevantly, “(c) proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them”.

3. Section 90SM (1) of the Act provides:

   “In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:

   (a)       in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them – altering the interests of the parties to the de facto relationship in the property; or

   …….”

4. Section 90RD (1) of the Act provides that the court may declare that a de facto relationship existed. Pursuant to subsection 90RD (2) the Court may also declare whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM (4) (a), (b) or (c ). It is common ground that the parties commenced a de facto relationship in 2008 and separated on a final basis sometime in 2012 though the parties dispute whether this was mid or late 2012. There is one child of the relationship, X, born in 2009 now 11. I am satisfied that the parties’ de facto relationship commenced in 2008 and ended in 2012 and spanned at least 4 and a half years if not a little longer. I am satisfied that the applicant made a substantial contribution to the relationship.

5. The approach to determining applications with respect to adjustment of property interests between either married or de facto partners is well settled: See In the Marriage of Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; Clauson & Clauson (1995) 18 Fam LR 693. The Court is required to identify the property, liabilities and financial resources of the parties at the time of the hearing, to evaluate the contributions made by the parties under section 90SM (4) (in de facto cases) including the matters referred to in section 90SF (3) in so far as they are relevant. Under section 90SM (3) the Court must not make an order unless it is satisfied that in all the circumstances it is just and equitable to make the order. It is the justice and equity of the actual order that the court is required to consider: See Russell v Russell (1999) FLC 92-877.

6. In Watson & Ling [2013] FamCA 57 (12 February 2013) Murphy J discussed the approach to property settlement mattes having regard to the principles enunciated by the High Court in Stanford v Stanford [2012] HCA 52; (2012) 247 CLR 180:

   “[12] Provided the discretion is exercised judicially, it is at large; it is neither possible nor desirable to specify its “metes and bounds” (Stanford  at [36]-[40] and [46]). Recognition is given to the fact that the circumstances of individual marriages (their nature, form and characteristics) can and do differ and those differences – the way in the which the parties have organised and lived their marriage/relationship – may be relevant to the exercise of the  s 90SM(3)/s  79(2) discretion. Equally, provided that the questions required by  s 90SM(3)/s  79(2) and  s 90SM(4)/s  79(4) are seen as separate and applied as such, and not conflated, the enumerated factors within  s 90SM(4)/s  79(4) can inform the  s 90SM(3)/s  79(2) discretion together with any such other considerations as are properly relevant (see,  Stanford  at [40]).

   [13]     As a result of those matters, the Court’s approach to s 79/s  90SM  may be less compartmentalised than what a strict or unthinking adherence to four (or three) “steps” might otherwise reveal. The task is essentially holistic; is it just and equitable in the particular circumstances of the particular relationship or marriage under consideration to make an order and, if so, its terms must similarly meet that criteria. Of course, holistic though the approach is, it must be referenced to what the Act requires and care must be taken to ensure that the Court’s reasons make that clear. (See, for example, Davut & Raif (1994) FLC 92-503 at 81,237).”

   BACKGROUND

7. The applicant is 52 born in 1968 and the respondent is 57 born in 1964. The parties commenced cohabitation in early 2008 and separated on a final basis in mid or late 2012. There is one child of the relationship X born in 2009 (now 11 years old). In early 2013 the applicant and X left the home they shared with the respondent. The respondent re-partnered with Ms D in 2019. The applicant has not re-partnered.

8. In late 2016 the applicant commenced proceedings in relation to parenting orders. Final parenting orders were made on 17 August 2018 for X to live with the applicant and for the applicant to have sole parental responsibility for the child.

9. On 5 November 2018 the applicant sought leave to extend time in which to commence proceedings for adjustment of property interests. Leave was granted by Judge Andrew on 30 April 2019. The parties attended a conciliation conference on 13 May 2020 however the matter did not resolve.

   Documents relied on

10. The applicant relied on her affidavits filed 5 November 2018, 8 April 2019, 27 April 2020 and 29 January 2021 and her financial statement of the same date. In addition she relied on a Case Outline filed on 25 February 2021. The respondent relied on his affidavits filed on 11 February 2019, 8 July 2019, 9 September 2019 and 18 February 2021. In addition he relied on a Case Outline filed on 23 February 2021, a List of Assets and Liabilities, Issues in Dispute and Written Submissions filed on 23 February 2021.

    COMPETING PROPOSALS

11. The applicant is seeking a splitting order for 50% of the respondent’s interest in superannuation.

12. The respondent is seeking an order that a splittable payment of $16,500.49 be made from his interest in superannuation in favour of the applicant. He submitted that the parties’ accumulated interest during the parties’ relationship was $52,500.98 and this sum should be divided equally between the parties. He argued that as the applicant currently had $10,000 she should receive a splittable payment of $16,500.49.

    Assets and Liabilities

13. The asset pool is modest. The parties agree that the only item of significant value is the respondent’s interest in superannuation. The applicant lists her property as a Motor Vehicle 1 worth about $4000, household contents worth about $10,000 and an interest in Super Fund B of $19,213.29.

14. The respondent lists his property as a motor vehicle worth about $2000, personal belongings worth $1500, money in the bank of $780 and an interest in superannuation of $179,000. He indicated that he had a loan with NAB for $15,000 and owed family and friends $47,000.

15. The respondent annexed to his affidavit filed on 11 February 2019 superannuation records. Those documents indicate that on 30 June 2008 the respondent’s accumulation interest account in C Super was $41,111.99 and his death benefit was $167,911.99. In June 2009 his accumulation interest account and withdrawal benefit was $40,231.05. In June 2010 his accumulation interest account and withdrawal benefit was $57,374.72 and his death benefit was $187,774.72. In June 2010 his accumulation interest account and withdrawal benefit was $70,514.63. In June 2012 his accumulation interest account and withdrawal benefit was $83,612.97 and his death benefit was $186,412.97. Annexed to his affidavit was a document of unknown origin indicating his “total balance as at 8 February 2019 was $163,308.92”.  He provided no further updating material in his affidavit filed 18 February 2021 regarding his interest in C Super.

16. In her affidavit filed on 29 January 2021 the applicant produced a document dated 18 January 2021 from C Super that recorded the respondent Mr Bardim’s “family law valuation” accumulation account interest in C Super at $168,792.10. That document indicates that the respondent joined C Super on 29 November 2004. In her earlier affidavit filed on 19 July 2019 the applicant deposed that the respondent’s interest in C Super was at that time estimated at $176,000. It is unclear the source of that information. According to the respondent his current interest in C Super is $179,000. The respondent submitted that in 2020 he withdrew $20,000 in accordance with the early release arrangements with respect to the Covid19 pandemic. No document has been produced to verify the respondent’s current interest in C Super. I intend to rely on the document produced by the applicant dated 18 February 2021 and find that the respondent’s interest in C Super is $168,792.10.

    Approach to superannuation

17. The respondent submitted that the Court should adjust his interest in superannuation in the following manner: In 2008 at the commencement of the relationship he held $41,111.99 in C Super. In 2012 he held $83,612.97 in C Super. He commenced a relationship with Ms D in 2019. At that time he held $163,308 in C Super. He submitted that the Court should approach the matter by deducting from $83,612.97 the amount of $41,111.99 leaving a balance of $42,500.98. He submitted that the applicant’s superannuation increased by $10,000 during the relationship. In his view the parties should share equally the increase in accumulated superannuation such that each party receive $26,500.49. He submitted that amount should be transferred to the applicant as a splittable payment.

18. In his written submissions the respondent varied this approach indicating that $16,500.49 should be transferred to the applicant by way of splittable payment given that she had accumulated $10,000 in her own superannuation fund. It is unclear where he referenced the amount of $10,000.

19. In my view the respondent’s approach to a superannuation splitting order is not appropriate. In T & T [Pension Splitting] [2006] FamCA 207 (17 March 2006) Watts J discussed the correct approach when dealing with superannuation interests. It is useful to set out what was said by His Honour in that matter:

    “What place does ‘Webber and Webber’ ((1985) FLC 90-648) or ‘West and Green’ ((1993) FLC 92-395) formula still have?

    [155]   The Webber/ West  &  Green formula had commonly been used by legal practitioners in negotiations from 1985 to the introduction of Part VIIIB when superannuation had to be treated as a financial resource.

    [156]   Prior to super splitting laws, the following formula was often used to quantify the amount of adjustment that needed to be made in respect of a superannuation entitlement:

Net realisable value of immediate retirement x Benefit Number of years in fund during cohabitation ÷ Number of years in fund 2

[157]   The amount of the calculation was then used as some indication of the amount of assets that needed to be transferred to the non - member, who would not have the long term benefit of the superannuation (a financial resource), in order to create a just balance between the parties.

[158]   After the introduction of Part VIIIB FLA, the debate about applying “time served” formulae to assessing contributions to a species of asset has re-emerged. In a well known passage in Crawford and Crawford [1979] FamCA 38; (1979) FLC 90-647 the Full Court commented on the danger of a mathematical approach to contributions saying at page 78,412:-

“It becomes, in our view, increasingly difficult as the period of cohabitation lengthens, to justify placing a special value on a single item such as an initial cash contribution made many years before and treating it mathematically, when indeed there are so many other facets of marital contribution which become equally, if not more, deserving of attention.”

[159]   A detailed analysis of the cases that have discussed the West and Green approach is contained at paragraphs 262 through to 279 of the judgment of Justice Young in BAR and JMR [2005] FamCA 386; (2005) FLC 93-231. His Honour refers to the cases of  West  and Green; Thomas and Thomas [1981] FamCA 12; (1981) FLC 91-018; Jenner and Jenner [1983] FamCA 16; (1984) FLC 91-544; Hauff and Hauff [1986] FamCA 16; (1986) FLC 91-747; Harrison and Harrison (1996) FLC 92-682; Bartlett and Bartlett (1996) FLC 92-721; Tomasetti and Tomasetti [2000] FamCA 314; (2000) FLC 93-023; O and O [2000] FamCA 1432; Cahill and Cahill [2003] FamCA 172; JEG and PDG [2003] FMCA Fam 404 and C and C [2004] FamCA 819.

[160]   In C and C the Full Court stated:-

“73. On behalf of the wife, it was urged upon the Court, in some measure turning the Court’s own words back on it, in reliance upon the decision of Cahill (supra), but in addition upon heavier and more weighty authority such as Harrison (supra), Bartlett (supra) and Tomasseti (supra) that the Court should not apply a formulaic approach for a variety of reasons including the absence of actual figures in that regard and the unfairness, it was asserted, of so doing having regard to the real value of money at that time.

Realistically, the most the Court can fairly do is to take into account the circumstances to which reference has been made and look at the contribution in the way that Pierce and Pierce [1998] FamCA 74; (1999) FLC 92-844 would suggest to be done, that is, in conjunction with all other contributions.”

[161]   In BAR and JMR Young J (at paragraph 279) said in respect of an interest in a defined benefit fund “in specifically rejecting the  West and Green or a like arithmetical formula approach I have concluded that it is likely to be both inaccurate and inappropriate in a consideration of splitting superannuation interests under Part VIIIB of the Act”.

[162]   Coleman J has said this approach is “not entirely acceptable. The appropriateness of formulaic approaches in general remains to be conclusively considered by the Full Court” (Coleman J in Cahill [2003] FamCA 172).

…….

……

[165]   The Full Court in C and C (2004) FamCA 819 suggested that something of  West and Green might still survive, but said that contributions had to be looked at “in conjunction with all other contributions”.

[166]   In Coghlan the majority specifically said (at paragraph 66) that in the context of considering contributions (as well as the other factors in Section 79(4)) the following matters may well be relevant:

1.        The relationship between years of fund membership and cohabitation;

2.The actual contributions made by the fund member at the commencement of cohabitation (if applicable), at separation and at the date of hearing;

3.        Preserved and non - preserved resignation entitlements at those times.

[167]   The first matter mentioned by the Full Court seems to suggest that there may be life in a  West and Green formulaic approach as a starting point for the consideration of what the initial contributions or post separation contributions were by the member to the fund. In my view, however, it would still be a matter to assess the weight and effect of “time served” contributions in the context of a history of all other contributions made by each party. The second and third matters mentioned in paragraph 66 of Coghlan might be more important depending on the nature of the fund. For example, it might be important, in a particular case, to know the amount that is in an accumulation fund at commencement of cohabitation.

Conclusions in relation to contributions to the husband’s category 2 superannuation

[168]   In this case, if a pseudo mathematical “time served” approach was taken using the  West  and  Green formula, the wife would be entitled to 21.7% of the husband’s superannuation interest (see paragraph 152 above: 10/23 x ½).

[169]   I am mindful that Coleman J was sitting as a Full Court in McKinnon. I do not read his Honour’s comments to yet be elevating a “time served” formulae to the status of “preferred approach”. Probably the West and Green debate will be revisited by a future Full Court.

[170] The superannuation ….. is now, at least, to be considered a species of asset. It is also likely to be property within the meaning of the definition of property contained in Section 4(1) Family Law Act (see paragraphs 105 – 107 above). Subject to what I say at paragraph 234 below, it is no longer treated as a “financial resource”. Superannuation can now be split. In my view the “West  &  Green” approach does not fit comfortably with how the Court assesses contributions in relation to other property and assets. The husband’s initial contribution to the superannuation (and there is no evidence as to what it was) is eroded over time by contributions made by each party during the course of cohabitation. The wife’s contributions as parent after the separation have to be taken into account.”

DISCUSSION

(a) Section 90SM contributions

1. In my view it is appropriate to assess both parties’ contributions rather than simply isolate the respondent’s interest in superannuation and apply a formulaic approach. I intend to assess both parties’ financial and non – financial contributions.

2. At the commencement of the relationship the applicant said she had about $2000 in superannuation. She denied that she had a debt of $50,000 but agreed that she had a debt of about $20,000. The applicant said she moved to Australia in 2008 from Country E on a Special Visa Category that enabled her to find work in Australia. She secured employment at Employer F working 25 hours per week.

3. The applicant said she was required to return to Country E to finalise custody arrangements for her older child G who was 10 years old at the time. He was to arrive in 2008 but he was not on the plane. She was away in Country E for 7 weeks. It was common ground that the respondent paid for the applicant’s return flight to Country E. G returned to Australia with the applicant and lived with the parties.

4. At the commencement of the relationship the respondent said he had about $65,000 in superannuation though this would appear to be incorrect. Documents from C Super indicate the respondent had an interest in C Super of $41,111.99 in 2008. In addition he had household furniture and a Motor Vehicle 2 worth about $40,000. He did not own any real property and was renting accommodation at the time.

5. During the relationship the applicant worked for Employer F earning $25 per hour working 25 hours per week. When X was born she reduced her work hours to 15 hours per week returning to work 5 weeks after his birth on reduced hours. When X was 12 months old she returned to work at Employer F working 25 hours per week and continued to work during the relationship. I accept her evidence.

6. The applicant was the primary carer and homemaker during the relationship. She did not receive any child support for G though he lived with the parties during their relationship. The respondent paid for G to return to Country E once every six months. The respondent also paid child support for his daughter from another relationship H, who is now 14 years old, during the time the parties were together. I take those matters into account.

7. The respondent worked full time during the relationship as a public servant earning between $65,000 and $70,000 p.a. I accept that he earned more than the applicant during the relationship. I accept that he made a non - financial contribution during the relationship but to a lesser extent than the applicant.

8. The applicant said during the relationship the respondent purchased two cars for $10,000 each and retained both vehicles at separation. The respondent claimed that the applicant demanded he buy a car for her and he paid $22,000. The car was written off by the end of the relationship. I am unable to determine the truth of that matter but accept that the respondent purchased a motor vehicle that the applicant used during the relationship.

9. During cross examination the respondent alleged that the applicant “gambled” during the relationship. She denied that. I accept her evidence. She agreed that in 2011 the respondent had a heart operation.

10. The parties separated in 2012 with the applicant leaving the respondent’s rental premises with the children in early 2013. Since that time the applicant has been primarily responsible for the care of X and almost solely responsible for his financial support.

11. The applicant complained that the respondent did not pay adequate child support post separation. Annexed to her affidavit filed on 29 March 2019 was a copy of a decision from the Queensland Civil and Administrative Tribunal dated 18 September 2018. In 2013 the respondent was charged with criminal conduct against a 23 year old female intellectually impaired young woman whilst he was engaged in employment in the facility housing the young woman. Criminal proceedings did not proceed however the respondent faced disciplinary proceedings with respect to the alleged conduct which he denied. His registration was cancelled and he was prohibited indefinitely from reapplying for registration as a public servant.

12. Following the alleged conduct he was terminated as a public servant without pay. He obtained part time employment in 2017 and 2018. During this period he paid a minimal amount of child support for the child.  

13. The respondent recommenced work in late 2018 part time earning about $19,000 p.a.. He paid child support as assessed.

14. The applicant complained that the respondent had significant sums deposited into his bank account during the period he was unemployed. With reference to these sums (for example $3136.56) the respondent said the money was provided by his family and friends for living expenses as he was not in receipt of any adequate income. The respondent said he owed about $47,000 to family and friends which he intended to repay. I accept his evidence.

15. I place significant weight on the fact that the applicant has been the primary carer for X and the child has spent only the briefest time with his father. I take into account that the applicant has maintained X financially with very little financial support from the respondent.

    Section 90SF (3) factors

16. I accept that the applicant will be required to primarily care for X for the next 7 years and continue to provide him with financial support. The applicant indicated that X has high needs diagnosed with ADHD and she has felt unsupported by the respondent. He rarely spends time with the respondent. Interim orders were made by consent for X to live with the mother and spend time with the father for 5 hours a fortnight each Saturday or Sunday. In late 2014 the applicant ceased the respondent’s time. In August 2018 final orders were made for X to live with his mother and for the mother to have sole parental responsibility.

17. The respondent did not dispute that he does not spend time with the child. He complained however that the applicant prevented him from doing so. He disputed that X had high needs suggesting his ADHD condition is “mild”.

18. The applicant is currently working as a retail worker for Employer J earning $320 per week working 14 hours per week. She is in receipt of Centrelink Jobseeker allowance of $205 per week and receives a Family Assistance Benefit of $417 per fortnight which includes rental assistance.

19. The respondent secured part time employment in 2017. In the year ending June 2018 his taxable income was $14,378 and in June 2019 his taxable income was $50,750. He indicated that his income declined in June 2020 due to Covid19 when he earned only $35,906. At the time of the trial the respondent said he was working full time however he did not disclose his current income. I accept he is earning at least $50,000 p.a. if not more. He re-partnered in 2019 however he provided no details about his partner, her financial circumstances and whether she earns income or owns property.

20. I am satisfied that it is just and equitable to make an order altering the parties’ interests in property. Each party has re-organised their financial affairs since separation.

    CONCLUSION

21. I find that the both parties contributed equally during the relationship. I find that post separation the applicant’s contribution both financially and non – financially has been significantly greater than the respondent’s contribution. I accept that a significant time has elapsed between separation and the date of hearing and that the respondent has re-partnered.

22. I am satisfied that the applicant will be required to support the parties’ child for a further 7 years on a meagre income. I accept that she will receive child support as assessed. I find there is a significant income earning disparity between the parties however that is not as a result of their de facto relationship but likely contributed to by the requirement of the applicant to prioritise the care of the parties’ child. I find that the respondent is likely to continue to accumulate superannuation in the future noting that he works full time.

23. I have taken into account all the facts and circumstances of this case which in my view does not lend itself to a percentage distribution.

24. The applicant’s interest in Super Fund B is $19,213.29. The respondent’s interest in C Super is $168,792.10. The parties hold a combined interest in superannuation of $188,015.39.

25. The applicant seeks a splittable payment of 50% of the respondent’s interest in superannuation. That amount does not take into account the respondent’s initial interest in superannuation which I acknowledge would have eroded over time, the length of the parties’ relationship or the amount of superannuation that accumulated post separation or any interest on investments within the fund.

26. I reject the respondent’s approach that the only interest to be divided is that amount that he says accumulated during the relationship being $26,500.49.

27. I am satisfied having regard to the parties’ financial and non - financial contributions that a splittable payment order should be made from the respondent’s interest in superannuation to the applicant in the amount of $50,000.

28. The effect of that order will result in the applicant receiving a non - member spouse interest in superannuation of about $50,000 from the respondent’s interest in C Super. She may be able to make an application for early access to those funds on the basis of hardship. The respondent will retain an interest in C Super superannuation of about $118,792.10.  Otherwise each party shall retain property in his or her possession and control and be liable for any debts in their own name. I am satisfied that the order I make is just and equitable in all the circumstances and I order accordingly.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Tonkin.

Dated:       17 March 2021