GH & CTH
[2005] FamCA 734
•5 AUGUST 2005
[2005] FamCA 734
FAMILY LAW ACT 1975
IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA
AT SYDNEY Appeal No. EA70 of 2004
File No. NCF 334 OF 2003
IN THE MATTER OF: H
G
Appellant Wife
AND: H
C T
Respondent Husband
CORAM: FINN, WARNICK, BOLAND JJ
DATE OF HEARING: 15 MARCH 2005
DATE OF JUDGMENT: 5 AUGUST 2005
JUDGMENT OF THE FULL COURT
| Name of Appeal | GH & CTH |
| Appeal Number | EA 70 OF 2004 |
| Date of Appeal Hearing | 15 MARCH 2005 |
| Date of Judgment | 5 AUGUST 2005 |
| Coram | FINN, BOLAND, WARNICK JJ |
Catchwords: APPEALS – FROM DECISION OF FAMILY COURT JUDGE – PROPERTY SETTLEMENT – EXERCISE OF DISCRETION – Property pool of $94,600 – The wife had one child from an earlier relationship – The husband had a debt from an earlier motor vehicle accident – The trial Judge assessed contributions as equal and awarded a 10% adjustment for s 75(2) factors – the trial Judge considered the wife’s ongoing care of the children of the marriage, the wife’s capacity for employment and to rehouse, the husband’s modest income and the composition of the small amounts of assets which the husband would retain including the proportion of superannuation to other assets – Conclusions of the trial Judge were not outside the generous ambit of discretion available to her.
Best and Best (1993) FLC 92-418
Bellenden (formerly Satterthwaite v Satterthwaite) (1948) 1 All ER 343
Norbis and Norbis (1986) 161 FLC 91-712
Gronow v Gronow [1979] 144 CLR 513
Fox and Percy (2003) 214 CLR 118
Coghlan and Coghlan [2005] FamCA 429
Application dismissed.
Ms H appeals orders made by Stevenson J on 11 June 2004 upon an application for alteration of property interests between the parties.
The trial Judge found the net assets of the parties for division, about which there was no dispute at trial, to be an extremely modest $94,600.00. Her Honour assessed the contributions of the parties as of equal value. She nominated an adjustment of 10% on account of s 75(2) factors “…primarily because [the wife] is responsible for the care of the parties’ two young children.” but reduced the resulting 60% division in favour of the wife because, on her findings, 27% of the husband’s entitlements upon division was comprised of “…a superannuation benefit to which he will not have access for many years…”.
The structure of the trial Judge’s orders permitted the husband to retain ownership of the former matrimonial home, upon payment to the wife of $49,000.
The Notice of Appeal contained 21 grounds. However, counsel for the wife grouped those grounds into 3 categories:
i) That the trial Judge’s assessment of contributions was manifestly unjust.
ii) That the trial Judge’s assessment of factors relevant under s 75(2) was manifestly unjust.
iii) That the trial Judge’s making an initial adjustment for s 75(2) factors of 10% but then, in the “fourth step”, effectively reducing that adjustment to 4%, on account of the proportion of superannuation contained within the property to be received by the husband, constituted a flawed methodology.
After a summary of the judgment of the trial Judge and the background facts appearing therefrom, we will return to a discussion of the grounds of appeal, including the principles applicable to the appeal, before arriving at our conclusion in respect of the appeal.
The wife sought to place further evidence before the Court, but her counsel confirmed during the course of the hearing that he did so only in the event that we found merit in the appeal and re-exercised the discretion that had been vested in the trial Judge. The husband sought, in that event, that we also receive some further evidence from him.
Judgment of the trial Judge and background facts appearing therefrom
The parties commenced cohabitation in September 1987. At the time, the wife had in her care a child of a former marriage born 1 June 1984. The trial Judge records that, at the commencement of cohabitation the wife had household chattels. Her Honour made no finding in respect of any property that the husband had at the commencement of cohabitation.
The parties first purchased residential premises in 1989.
They married on 18 May 1991.
There are two children of the marriage, J, born in July 1991 (nearly 13 years old at trial) and A, born in January 1999 (5 years old at trial).
Both the parties were in employment at the commencement of cohabitation and though neither had continuous employment, each worked throughout the period of cohabitation subject, in the wife’s case, to periods relating to the birth of the children and their care, and to much of her work being part-time.
In January 1992, the husband was involved in a motor vehicle accident while under the influence of alcohol. Damage was caused to other vehicles. A resulting debt has taken on some significance in the appeal.
The trial Judge found that, by way of inheritance or gift, the wife received from the estate of her mother, from her father, and her sister, between 1992 and 1994, a total of $36,000.00. The trial Judge accepted the wife’s evidence that in general she used the funds received by her to the benefit of the parties and the family.
In October 1999, the husband moved to Kempsey because his father had become seriously ill. He quickly found employment. He left his ATM card with the wife, thus giving her access to funds in his Westpac bank account. The wife applied for a sole parent’s pension on the day the husband went to Kempsey.
The parties’ Sydney home was sold in February 2000, producing net proceeds of $50,971.00, deposited into a Westpac account in the name of the husband. For a short time thereafter, the parties and the children lived in a caravan in Kempsey but then the wife and children moved into rented premises. The husband spent “substantial periods” in those premises.
In December 2000, the husband purchased residential premises in Kempsey for $55,000.00, using $11,000.00 from the sale proceeds of the Sydney property and borrowing the balance. In April 2001, the wife and the children moved into that residence. They lived there with the husband until July 2002, when the wife and children moved to rented accommodation.
The trial Judge found that it was:
“55. …more probable than not that Mr H was aware that Mrs H was in receipt of social security benefits between October 1999 and July 2002. Perhaps the most charitable interpretation is that he was focussed on his wish for a reconciliation to such an extent that he was oblivious to whether or not Mrs H continued to receive social security benefits. In any event, this money came into the household and would seem to have been used for the benefit of the parties and children.
From July 2002, the children lived with the mother and had contact with the father, in essence each alternate weekend and half of all school holidays.
At trial, the husband was 38 years of age, the wife 42.
The trial Judge said of the financial position of the parties:
“The assets
29. The parties were agreed and I find that they have the following assets:
Non Superannuation Assets 1. Property in Kempsey $130,000 2. 1987 Ford Falcon (wife) $1,000 3. Furniture (wife) $1,000 4. Furniture (husband) $100 Superannuation assets
5. Husband’s STA Superannuation Fund $10,100 TOTAL: $142,200
30. The parties were agreed and I find that they have the following liabilities:
1. Lion Finance (husband) $5,700 2. Homeside Lending mortgage (husband) $39,100 3. Arrears of rates in respect of Kempsey property (husband) $2,800 TOTAL: $47,600 31. The net pool of property thus amounts to $94,600. Neither party held any financial resource.”
The debt of $5,700.00 related to landscaping done at the Sydney home and the husband was continuing to repay that debt.
In addressing contributions, the trial Judge accepted that the major homemaker/parent contribution was made by the wife, but she said:
“43. …Her daughter, however, lived as a member of the household for a number of years and Mr H obviously made a significant contribution to her welfare and financial support. Mrs H conceded that her daughter’s natural father had no contact with her and paid no child support.”
Stevenson J recorded, but rejected, a submission that the debt which the husband had incurred as a result of the motor vehicle accident should be taken into account against the husband.
More generally as to contributions, the trial Judge said:
“57. Mr H made a significant financial contribution by way of his earnings. There were periods during the relationship when he held two and three jobs and there was no evidence that he used his income otherwise than for the benefit of the family.
…
59. As I have said, it seems clear that Mrs H was the party who was primarily responsible for the care of the children and the domestic tasks in the household. At the same time, Mr H made a contribution to the welfare and financial support of her daughter. In circumstances where the child’s father never provided financial support and there were periods when Mrs H worked part-time or did not work outside the home, it must follow that Mr H made such a contribution. Since the parties ceased living in the same household, he has paid child support for J and A as assessed.
60. When I weigh the various contributions made by Mr and Mrs H I reach the conclusion that there is no imbalance in favour of Mrs H, as was submitted on her behalf. Mr H worked and earned income for almost the whole of the period of cohabitation, thus he made a very significant financial contribution. Mrs H received lump sums from her family and engaged in part-time employment for various periods during the relationship. She, too, made a very significant financial contribution.
61. Mrs H made a significant contribution as a homemaker and parent. At the same time, Mr H made a significant contribution to the welfare and financial support of his stepdaughter.”
As previously indicated, her Honour concluded that the contributions of the parties were of equal value.
The trial Judge then turned to address s 75(2) factors. She said that, “there was no suggestion that Mrs H suffers any health problems.” She recorded that the husband had made some complaint about his health but there was no medical evidence to support him in that assertion.
At trial, the husband was employed as a process worker earning $670.00 gross per week. He had worked for the the same company since 1999 and the trial Judge found “thus he would seem to have some level of job security”.
Of the wife, the trial Judge said that she had:
“…worked in a variety of positions in the past, and, clearly, she has some employment experience and skills. Since 1999 her income has consisted of social security benefits.”
The trial Judge then recorded the ages of the parties and the fact of the primary care of the children by the wife. As earlier indicated, it was that factor which primarily was responsible for the adjustment ultimately made in the wife’s favour.
Her Honour addressed a submission on behalf of the wife and reliance, in support of that submission, upon Best and Best (1993) FLC 92-418, that the adjustment for s 75(2) factors should be 20%. Of that submission, her Honour said:
“69. There is a significant difference in the facts of Best and Best and the present situation. In each case, there was a small net pool of property. Mr Best was a high income earner with the potential to re-establish himself financially with relative speed and ease. Obviously, the same cannot be said of Mr H, who is a process worker in receipt of a modest wage.
70. It seems to me that an adjustment of 20% in favour of Mrs H would be excessive. Such an allowance would give little or no recognition to Mr H’ payment of child support and his relatively modest circumstances.”
Her Honour then turned to the competing positions in relation to the future ownership of the former matrimonial home. She noted evidence by the wife that the wife could borrow up to $100,000.00 and said:
“73. …With that amount and the payment which Mr H will make to her, if he is to retain the property, she should be able to purchase a home in the Kempsey area.”
Her Honour then recorded that the husband had made the former matrimonial home his home for the preceding 3½ years. She expressed the view that he should be given the opportunity to retain the home but that if he was unable to raise the necessary funds, there should be a sale.
Finally, after addressing the monetary consequences of division in accordance with her assessments, her Honour said:
“77. I am conscious that approximately 27% of Mr H’ entitlement of $37,840.00 consists of a superannuation benefit to which he will not have access for many years, other than in exceptional circumstances. The question then arises whether it is just and equitable, in all of the circumstances, that I make orders within a framework which I have outlined above.
78. I am unable to make a superannuation splitting order, thus the benefit must remain with Mr H. It seems to me that the requirements of justice and equity mean that recognition should be given to this circumstance and be reflected in the amount which Mr H will be required to pay to Mrs H. On this account, I propose to reduce the payment to $49,000.00.”
The grounds of appeal, as argued
The assessment of contributions
Counsel challenged the weight given by the trial Judge to the husband’s contributions to the welfare and support of the wife’s daughter.
When initially addressing the question of the husband’s contributions in these regards, counsel for the wife challenged the basis of the finding by the learned trial Judge that such contributions had been made. In a general way, he pointed to the fact that the wife had had funds available from which she might have been solely responsible for the financial support of the child.
The trial Judge had made findings in accordance with the wife’s evidence about how she had used her monies from inheritance and family. While that evidence was in reasonably general terms and in respect of some amounts, mostly the smaller amounts received, she said they had gone to household and living expenses, in most cases, the wife nominated that the monies went towards acquisitions or expenses, which did not include the support of her daugher. Otherwise, the wife’s wages were the only source from which she might have supported the child.
Counsel’s attention was drawn to paragraph 59 (earlier quoted), where the trial Judge said:
“59. As I have said, it seems clear that Mrs H was the party who was primarily responsible for the care of the children and the domestic tasks in the household. At the same time, Mr H made a contribution to the welfare and financial support of her daughter. In circumstances where the child’s father never provided financial support and there were periods when Mrs H worked part-time or did not work outside the home, it must follow that Mr H made such a contribution.…”
Counsel for the wife presented no further argument that the findings expressed in this paragraph were not open to the trial Judge.
Counsel for the wife also attacked the trial Judge’s conclusions in paragraphs 60 and 61, asserting that they were to the effect that the trial Judge had offset the husband’s contribution to the support of the wife’s daugter against the contributions of the wife, which the trial Judge indicated were otherwise more weighty than the contributions of the husband.
This is not our reading of those paragraphs, which have been set out earlier in these reasons and this we pointed out to counsel at the hearing. In our view, all her Honour did was list relevant factors, make some assessment of their significance and at the end, arrived at the conclusion of equality of contribution.
Counsel for the wife also submitted that the dealing by the trial Judge with the debt arising from the motor vehicle accident in which the husband was involved in 1992, was flawed. He submitted that repayment of this debt substantially during the cohabitation of the parties represented a drain on the parties’ income, which otherwise would have been available for other purposes and that this circumstance should have diminished the weight given to the husband’s overall financial contribution.
The trial Judge commenced her discussion of this matter at paragraph 14 of her reasons. She recorded the wife’s allegation that the husband had incurred a debt of approximately $14,000. She also recorded that the husband had stated that he was required to assume the liability only when his employer became insolvent. In paragraph 15, the learned trial Judge said:
“Mr H maintained that the original debt was in an amount less than $14,000 but he did not specify a figure. In any event, it was agreed that the current balance is approximately $5,000. It seems that Mr H has entered into an arrangement whereby he is to pay off this debt at the rate of $100 per week.”
It was common ground before us that the finding about the current balance of the debt was incorrect and in fact the evidence established that the debt had been paid off by the husband some time in 2003. What the trial Judge recorded about a current debt and an arrangement to repay it in fact related to the balance of the debt incurred in the early 1990s, in relation to landscaping at the first matrimonial home of the parties.
We were taken to the affidavit evidence of the wife about the debt arising from the vehicle accident.
“18. …We used the services of the Solicitor who was handling my mother’s estate and he suggested that we use a Barrister for the hearing because it was not the Respondent’s first conviction of driving under the influence in 5 years. The Respondent was also unlicensed at the time of the accident. The respondent was convicted and disqualified from driving for six months and given a $600.00 fine.…We also had the debt with the Insurance Company for Ace Customs which was $14,000.00 plus the damage to the other cars.
19.In July 1992 the sale of my mother’s unit was finalised and I received the sum of $25,000. From this money I paid the barristers fees and solicitors fee for the Respondents Court matter and paid a portion for the unit to be prepared for sale. After these amounts were paid I was left with $21,000.00.”
It appears that the husband, who was unrepresented at the hearing before Stevenson J, asked very little of the wife by way of cross-examination and nothing about the above assertions. However, in cross-examination of him, the question of the debt arising from the motor vehicle accident was raised. Then, the husband asserted that he was licensed at the time of the accident and that the debt was much less than $14,000 by the time he took it over.
The trial Judge considered the submissions made to her about this debt in terms partially set out in paragraph 42 above, but in a context more fully quoted now:
“56. On behalf of Mrs H it was submitted that the appropriate finding as to contribution is 70% in her favour. The basis for this submission was that she made a financial contribution by way of income from part-time work and the funds received from her family, plus she has made a significant contribution as homemaker and parent. It was submitted, further, that Mr H’ motor vehicle accident was a ‘negative contribution’ and he has allowed arrears of rates to accrue with respect to the Kempsey property.
57. Mr H made a significant financial contribution by way of his earnings. There were periods during the relationship when he held two and three jobs and there was no evidence that he used his income otherwise than for the benefit of the family.
58. As to the motor vehicle accident, I do not accept the notion of ‘negative contribution’ in principle and, in fact, this liability still exists and will be assumed by Mr H. The evidence did not indicate what payments have been made in reduction of this debt during the parties’ cohabitation.”
Her Honour then further addressed contributions, in the paragraphs through to her conclusion about contributions, at paragraph 63. Most of these paragraphs have been previously quoted.
True it is that in paragraph 58, her Honour repeated her misunderstanding of the evidence, saying that the liability in respect of the motor vehicle accident was still existing and assumed by the husband. The extent and effect of this error however, must be seen in the context of the other evidence about the debt.
First of all, the liability did exist post-separation and was assumed by the husband.
Secondly, there were a number of pieces of conflicting evidence not resolved by findings. They included:
(a)The amount of the debt assumed by the husband and the time at which that debt was assumed.
(b)The amount of the debt at any other stage, such as at separation.
(c)The circumstances in which the accident occurred and whether the husband acted recklessly, negligently or wantonly with the effect of reducing the parties’ property.
There was no challenge to the trial Judge’s dealing with these aspects of the evidence relating to the debt.
It is our view that the approach her Honour took, discernible from paragraphs 56 through to 63, was that, having regard to all of the contributions made by each party, including the considerable financial contribution of the husband, the incurring of a debt by the husband in relation to a motor vehicle accident should not, per se, diminish his contributions.
In other words, the trial Juge made no finding about the circumstances in which the debt arose such as might take the debt out of a usual treatment that such liabilities fell within the joint financial activities of the parties during cohabitation.
In these circumstances, and since, in any event, her Honour found:
“58. …The evidence did not indicate what payments have been made in reduction of this debt during the parties’ cohabitation.”
we do not consider that the misapprehension of the trial Judge that some of the debt remained outstanding, affected her conclusion.
Furthermore, leaving aside whether it is open to a trial Judge to take account of a “negative contribution” and accepting that there were approaches properly available under which account could have been taken of the debt arising out of the motor vehicle accident had the evidence and findings supported it, we do not accept that within the circumstances of this case, not taking account of the debt against the husband was a course that was unavailable to the trial Judge.
Finally, counsel for the wife submitted that insufficient weight had been placed upon the wife’s contribution of monies received by way of inheritance and from members of her family. Initially, counsel seemed at pains to establish the use to which those monies had been put, but settled for the findings of the trial Judge that the wife had used the monies “…for the benefit of the family.”
Nonetheless, counsel pressed the submission that, particularly having regard to the wife’s inheritances and other monies received from family, the trial Judge’s assessment of equality of contributions was manifestly unjust.
We refer to what has been said as to the width of the discretion of the trial Court and the caution that appeal courts should exercise, in cases such as Bellenden (formerly Satterthwaite v Satterthwaite) (1948) 1 All ER 343 at 345, Norbis and Norbis (1986) 161 FLC 91-712 at 75,178, Gronow v Gronow [1979] 144 CLR 513 and CDJ v VAJ (1998) 197 CLR 172 at 231.
We refer also to what was said in the High Court in Fox and Percy (2003) 214 CLR 118, in particular at paragraph 23 in the joint judgment of Gleeson CJ, Gummow and Kirby JJ, when their Honours were discussing the powers and functions of the New South Wales Court of Appeal:
“[the Appellate Court]…must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.”
We are not satisfied that the conclusion of the trial Judge about contributions was outside the generous ambit of discretion available to her.
The assessment of section 75(2) factors
Counsel for the wife offered some criticism of a finding by the trial Judge that:
“64. …There was no suggestion that Mrs H suffers any health problems.…”
He submitted that the wife had given uncontroverted evidence of having a serious operation at the end of 2003, resulting in her being unable to obtain employment. Reference was made to a paragraph of the wife’s affidavit in which she said that she had had an operation and that after her release from hospital she had required home nursing for two months. She further said:
“21. …As a result of my incapacity I was unable to maintain my employment and I have not been able to obtain employment since. As a result of my condition I am only able to perform office duties for which I have limited skills.”
The passages of evidence just referred to are rather uncertain in meaning. Clearly, the wife was deposing that, for a time, the effects of the operation incapacitated her for employment but it is not clear that she suggests a continuing incapacity, preventing employment thereafter. She simply deposes that she had not been able to obtain employment since. True it is that she does say that her capacity is limited by her “condition” but she does not say what that condition is and why it has a limiting effect on her employment capacity. There was no medical evidence in respect of the wife’s health.
The finding complained of appears under the heading “Section 75(2)(a): the age and state of health of each of the parties;”. It was not argued before us that any finding about the evidence in relation to the wife’s health was given any relevance to the assessment of s 75(2) factors, beyond such effect as the wife’s health might have on her capacity for employment.
In this regard, later, under a heading that included the “capacity … for appropriate gainful employment” the trial Judge said of the wife that she had:
“66. …worked in a variety of positions in the past, and, clearly, she has some employment experience and skills. Since 1999 her income has consisted of social security benefits.”
In view of the evidence and its limitations, while the trial Judge might have overstated the position that there was “no suggestion” that the wife was at the date of trial suffering any health problems, in our view her more specific findings of the wife’s employment capacity were open to her on the evidence.
The primary argument about the assessment of s 75(2) factors was simply that an adjustment of 10% in the wife’s favour, particularly having regard to the young age of the child A (5 at trial), was manifestly insufficient.
It is well-established that in addressing the sufficiency of an order or adjustment, regard must be had to the monetary consequence, not just the percentage assessment underlying it.
A great difficulty when dealing with a small pool is that the monetary result of adjustment under s 75(2) will often remain hopelessly inadequate to make any real difference to the capacity of the recipient to address the very aspects leading to adjustment.
Nonetheless, this deficiency is a result of the insufficient estate and must not be allowed to unfairly overwhelm any factors to be measured against those favouring adjustment to the ultimate recipient.
In the instant case, the trial Judge noted the husband’s payment of child support and his modest income, as factors limiting an adjustment in the wife’s favour.
We have in mind that the ultimate adjustment was only 4% approximately but as the basis for that adjustment was challenged in substantially separate argument next discussed, at this stage simply say that having regard to what we have already said about the principles relating to the appeal, we are not satisfied that there is merit in the matters argued in support of this appeal point.
Methodology
Essentially, the argument in this regard was that the trial Judge should have considered the composition of the assets to be retained by the husband, in particular the extent to which those assets was comprised of superannuation, when considering s 75(2) factors, rather than at the “fourth step” when considering whether the orders were just and equitable.
It was not contended that the composition of the assets to be retained by the husband was not a relevant matter.
In Coghlan and Coghlan [2005] FamCA 429, the majority of the Full Court said:
“61. Nothing we have said in this judgment would prevent a Court in the exercise of its discretion from including a superannuation interest as an item of property in the list of property which is drawn as “the first step” in the determination of proceedings under s 79, whether or not a splitting order is sought in those proceedings. This approach could be adopted where the parties agree that it should be adopted, or where the Court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s 4(1), or if the interest is not within that definition, but is of relatively small value in the context of the value of the other assets in the case, or there are features about the interest which leads the Court to conclude that this would be an appropriate approach.
62. The parties’ contributions to all items on that list (including the superannuation interest) would then be assessed on either a global or an asset by asset basis. It might then be necessary in the s 75(2) context to have regard to the parties’ future superannuation entitlements (having regard of course to any division proposed on the basis of their contributions), with consideration then being given to the overall justice and equity of any proposed award or order (including any proposed splitting order). Indeed, this is the approach which the Full court has used on its re-exercise of the trial Judge’s discretion in Ilett and Ilett (which will be delivered contemporaneously with the decision in this case).
63. However, given the conclusions we have reached above, we consider that the preferred approach to the determination of property settlement cases must be to prepare in addition to the list of items of property (which would clearly fall within the definition of that term in s 4(1)), a separate list containing any superannuation interest or interests (valued according to the Regulations if a splitting order is sought in any application before the Court, or if no such order is sought, valued either according to the Regulations or otherwise). This of course is the approach which the trial Judge adopted in this case.
64. Then for the reasons we earlier gave, whether or not a splitting order is sought on either party’s application, the parties’ contributions to both the property (as defined in s 4(1)) and also to the superannuation interests should be assessed. The other factors in s 79(4)(d), (e), (f) and (g) would then need to be considered. Specifically in the context of s 79(4)(e), that is the s 75(2) factors, any division of the property (as defined in s 4(1)) and any “division” of any superannuation interest (in the sense of an allocation of the base amount) based respectively on the assessments of the parties’ contributions to the property and to any superannuation interest, would then be considered. Similarly, the parties’ future superannuation prospects (be they in capital or income form) would also need to be considered. The overall justice and equity of the ultimate award (including any proposed splitting order or the need for such an order) would then be considered.
65. In summary, then, the trial Judge has a discretion as to how superannuation interests will be treated in a particular case. If superannuation is not included in the list of property but rather made the subject of a separate pool, it will be necessary where a splitting order is sought, or extremely prudent where no such splitting order is sought (in order to ensure that justice and equity is achieved) to:
(a)value the superannuation interest (according to the Regulations if an order under Part VIIIB is sought or according to the Regulations or otherwise if no order is sought);
(b)consider and make findings about the types of contributions referred to in s 79(4)(a), (b) and (c) which have been made by the parties to the superannuation interests on either a global approach or an asset by asset approach depending on the circumstances;
(c)consider the other factors in s 79(4) being the matters in s 79(4)(d), (e), (f) and (g); and
(d)ensure that pursuant to s 79(2) the orders in relation to the parties’ property, and any order under Part VIIIB in relation to superannuation interests are just and equitable.”
The methodology employed by the trial Judge seems to us to be within the broad range of options referred to by the Full Court in Coghlan.
At what was arguably the fourth step, her Honour recognised that in the circumstances of the case she was “…unable to make a superannuation splitting order, thus the superannuation asset must remain with Mr H.”
As her Honour had also recognised:
“…approximately 27% of Mr H’ entitlement of $37,840.00 consists of a superannuation benefit to which he will not have access for many years, other than in exceptional circumstances”.
We appreciate that the overall effect of the trial Judge’s consideration of s 75(2) factors and then the question of the composition of assets to be retained by each party was that ultimately the contributions-based assessment was adjusted by about 4% or 5% only in the wife’s favour. However, it is by no means apparent that had the composition of assets to be retained by each party been considered by the learned trial Judge at the third step rather than the fourth step, the result would have been any different.
As noted several times, the primary factor relevant under s 75(2) and favouring adjustment to the wife was her on-going care of the children of the marriage. Against, or limiting, any adjustment on this account were the trial Judge’s findings about the wife’s capacity for employment, the wife’s capacity to rehouse, the modest income of the husband and, whether considered at the third or fourth step, the composition of the small amount of assets including superannuation, to be received by the husband.
Having regard to these competing factors, we think the trial Judge’s adjustment towards, or at the bottom, of the range of orders open to her, but, having regard to the applicable principles, that there is no appellable error.
Conclusion overall
As we have not found merit in any of the grounds of appeal, it follows that the appeal will be dismissed. It is thus unnecessary to consider the questions of further evidence. As the husband was unrepresented, and he did not incur any legal expenses in preparation, no question of a costs order arises.
ORDER
That the appeal is dismissed.
I certify that the 82 preceding
Paragraphs are a true copy of the reasons for judgment delivered by this
Honourable Full Court.
Sgnd: ………………
Associate
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