Howard and Howard

[2008] FamCA 475

FAMILY COURT OF AUSTRALIA

HOWARD & HOWARD [2008] FamCA 475

FAMILY LAW – Property – Superannuation

Family Law Act 1975 (Cth)

Coghlan & Coghlan (2005) FLC 93-220
M & M (2006) FLC 93-281

APPLICANT: Mr Howard

RESPONDENT: Mrs Howard

FILE NUMBER: SYF 2718 of 2006

DATE DELIVERED: 17 June 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 6 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson

SOLICITOR FOR THE APPLICANT: York Family Law

COUNSEL FOR THE RESPONDENT: Mr Miller

SOLICITOR FOR THE RESPONDENT: Certus Law

Orders

1. The matter is adjourned to be re-listed before me when the parties are able to settle a minute of order which takes account of the determinations made by me or until the 30^th July 2008 at 9.30. a.m., whichever be the earlier event.

2. On the adjourned date I invite further submission from the parties in relation to how the adjustment under section 75(2), as determined by me, should be reflected in the orders of the Court. Such submissions may be provided in writing if that be more convenient to the parties.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2718 of 2006

MR HOWARD

Applicant

And

MRS HOWARD

Respondent

REASONS FOR JUDGMENT

1. This is a review of a decision by Judicial Registrar Johnston delivered on the 21^st of December 2007. The Applicant for the review is the husband. The wife seeks to retain the result provided by the judgement of the Judicial Registrar.

2. The Applicant has identified specific areas of complaint in relation to the way in which the Judicial Registrar reached his decision. I have been invited to read the judgement of the Judicial Registrar and it was agreed between the parties that the factual findings in the Judicial Registrar’s decision are to be available to me and there was to be no further oral evidence. There is, however, updating evidence including an affidavit from Mr N, an affidavit of the husband filed the 20^th of May 2008, an affidavit of Mr C filed the 20^th of May 2008, a financial statement of the husband filed the 20^th of May 2008 and an affidavit of the wife filed the 23^rd of May 2008.

3. I was also advised that the parties had agreed that the K property is to be sold and I was requested to invite the parties to prepare a minute of order in relation to the distribution of funds once I had reached my decision in respect of the limited areas of dispute.

4. At paragraph 90 of the Judicial Registrar’s judgement there is a heading “Summary of assessment of contributions and effect on the various Assets.” The Judicial Registrar determined that the parties’ contributions to the non-superannuation property be assessed at 65% to the husband and 35% to the wife. There is no issue about that determination. The Judicial Registrar determined that in relation to the parties’ superannuation (except CSS) their contributions should be assessed as equal. There is no dispute about this assessment.

5. In relation to the assessment of contribution to the CSS superannuation the Judicial Registrar determined that the assessment should be the husband 70% and the wife 30%. This assessment is challenged by the husband. The husband submits that the wife should get no more than 10% assessed contribution to the CSS superannuation fund. Subject to the evidence of Mr G, which I will refer to shortly, I incorporate into this judgement the reasons of the Judicial Registrar up to and including paragraph 90 of the judgement of the 21^st of December 2007. In so incorporating the judgement, so far as it relates to the assessment of contribution to the CSS superannuation fund, I include it only for historical relevance and I intend in these reasons to assess afresh for myself the contributions of the parties to the CSS superannuation fund.

6. The husband provided a case outline document which identified the issues.

The submissions of the husband

1. There is no issue that the current value of the husband’s CSS interest is as determine by Mr G at $870,331 as at the 1^st of April 2008. This was a different figure to that which had been available to the Judicial Registrar.

2. In paragraph 1.6 of the report attached to the affidavit of Mr G there is a valuation of the husband’s CSS interest as at the 1^st of August 1990. This date is the date determined by the Judicial Registrar in his judgement to be the date of cohabitation. There had been a different date contended for by the husband in those proceedings. Mr G found that 67.01% of the current value, namely $583,209 is attributed to contribution made prior to the 1^st of August 1990. The balance of the interest, namely $287,122, is attributed to growth post the 1^st of August 1990.

3. In paragraph 1.7 of his report, Mr G says as follows:

   “In considering the above values, it may be appropriate to take into account the nature, form and characteristics of the superannuation interest. Briefly, the member held a deferred benefit in CSS as the member had ceased relevant government employment. The most valuable component of an interest in CSS is the employer financed life pension that is indexed to CPI. This pension cannot be commuted to a lump sum. The other significant components are the Accumulated Basic Contributory (“ABC”) and the Productivity Component (“PCI”). These components accept interest in a similar manner to an accumulated interest. The ABC and the PCI are payable as either a lump sum or can be commuted to a non indexed life pension.”

4. In paragraph 83 subparagraph 8, as it appears of page 18 of the Judicial Registrar’s judgement, there is recited portion of a notice of agreed facts which became exhibit 3 in the proceedings before the Judicial Registrar. Paragraph 8 has itself a number of subparagraphs however, the contents of subparagraph (i) and (ii) bear further re-mention:

   “8.      The deferred benefit membership held by the husband has three components: (i) a member component compromising the amount he has contributed together with interest calculated by reference to the returns on investments made by the trustee less administration costs. (ii) a productivity component representing 3% of the employee’s salary and derives solely from employer contributions being unfunded until 1992 and funded by financial contributions on the part of the employer after 1992.”

5. It is important to bear the above quote in mind in considering what indirect contribution the wife could have made to the husband’s superannuation.

6. It is submitted, by the husband, the assessment of contribution made by the Judicial Registrar as 30% to the wife in the husband’s CSS interest had the effect of giving the wife more than 90% of the increase in the value of the pension between the 1^st of August 1990 and the date of the trial. It was submitted that the wife’s assessment should be contained to a figure of not more than 10% to the husband’s CSS superannuation.

7. The wife submits that the findings of the Judicial Registrar were correct in terms of assessment of contribution to the CSS superannuation. She submits that the approach of the husband to the assessment of contributions is fundamentally wrong in that it concentrates on the CSS fund and contributions of a financial nature made by or on behalf of the husband which is not the requirement of s.79(4). That section requires assessment of contribution having regard to all the matters referred to in s.79(4). In this case it would relevantly take into account the wife’s contributions including her contribution as a homemaker for the parties. Her compensation payment of $22,000 received in 2003. Receipt by the wife in June 2005 of $8000 from her former husband as support for the two children. The income earned by the wife during the course of the cohabitation. . It also needs to consider the husband’s other contributions including, as a homemaker.

8. Looking at the comparative figures which appear in paragraphs 38 and 46 of the Judicial Registrar’s judgement, it must be acknowledged that prior to 2001 the wife’s income was considerably less than that of the husband. However, from 2001 to the date of separation, the difference between the parties’ incomes was not great. Overall it must be stated that the wife’s contribution from income, during the course of cohabitation, was not token but substantial.

9. The wife refers me to the Full Court decision of M & M (2006) FLC 93-281. In that decision, the Full Court said at paragraph 123:

   “123.  In our view it is clear from those comments that the majority in Coghlan (supra) was concerned with a consideration of actual contributions where they were ascertainable.  The relationship between years of fund membership and cohabitation might be relevant in a defined benefits scheme whereas actual contributions made by the fund member at the commencement of the cohabitation might be relevant to an accumulation fund where in both cases the marriage was of short duration.  However, in our view there is nothing said by the majority in Coghlan (supra) that would give any support for the application of some kind of a formula or that contributions to superannuation whatever the nature of the fund, should be treated in a different way from contributions to other property under s 79(4).  This is so in our view whether the superannuation is considered as part of one pool of assets or in a separate pool.”

10. In the written submissions on behalf of the wife the following dot points appear:

    ·    Mr [G’s] report shows that the amount to be taken as the value (s.90MT(2) of the Family Law Act 1975) of the Husband’s CSS interest at the relevant date of 1 April 2008 was $870,331. The lump sum component of this amount, consisting of the accumulated basic contributions and the accumulated supplementary contributions, is $175,271.51 and the balance represents the amount that would be required to meet the accrued pension liability.

    ·    What accounts for the increase in value? The increase in value is derived from an increasing entitlement on the part of the Husband to his CPI indexed pension payable upon his reaching a condition of release.

    ·    How should the contributions to the growth in the Husband’s CSS interest be assessed? The contributions are made by the employer at the time the pension liability falls due. In other words, the employer does not put aside an amount to create a pension fund but waits until the liability falls due and then makes the financial contribution in the form of a fortnightly pension payment. An identical scheme to this is the scheme for judicial pensions under the Judges’ Pensions Acts 1968.

    ·    The Husband’s entitlement in the CSS is an unusual defined benefit interest in that much of the increase in the amount is achieved by future contributions by the employer but the liability to pay accrues while the member is either a contributing or deferred member.

    · Contributions under s.79 of the Family Law Act 1975 are not only financial but can be non-financial as well as contributions to the welfare of the family (s.79(4)(b) and (c) of the Family Law Act 1975). It has long been recognised that these contributions are not objectively quantifiable (Kennon v Kennon (1997) FLC 92-757) nor are contributions to the welfare of the family referable to the acquisition, conservation or improvement of a particular item of property of the parties to the marriage or either of them (Farmer & Bramley (2000) FLC 93-060). But these contributions are no less valuable than financial contributions (Norbis & Norbis (1986) 161 CLR 513).

11. In oral submissions on behalf of the wife, Mr Miller of counsel, submitted that the pension portion of the CSS superannuation represents the lion’s share of the value. He submitted that it grows by the passage of time. He referred me to paragraph 88 of the judgement of the Judicial Registrar. He said that there were productivity allowances made. It was submitted that the wife indirectly contributed to those productivity allowances. Further, there was a small amount of contribution by the employer which the wife indirectly contributed to.

12. It was further submitted that the appreciation of the pension interest is coincident with the marriage. During the marriage, the wife was making other contributions under s.79(4). It was submitted that the Judicial Registrar made a finding that the wife’s contribution under s.79(4)(c) was greater than the husband’s. It was submitted that the decisions in M & M (supra) and Coghlan & Coghlan (2005) FLC 93-220 made it clear the Court was required to take into account all contributions under s.79(4), including s.79(4)(c), when assessing contributions to individual pools of superannuation.

13. This was a lengthy cohabitation of some fifteen years. The wife was employed, as was the husband, throughout the cohabitation. The husband had some minor periods of unemployment. The parties both contributed as homemakers, although the Judicial Registrar assessed the wife’s contributions as a homemaker as being greater than the husband’s and the husband’s financial contributions as being greater than the wife’s. In my view, this is a case where the value of the superannuation which the husband held at the date of cohabitation can be isolated and can be seen as a resource which did not require any of the parties’ financial resources to preserve it during the course of the cohabitation. I therefore conclude that the area of greatest significance in determining assessment of contribution is the difference between the value of the superannuation at cohabitation and its current value, namely $287,122. It is to this value that I conclude the wife has made substantial contributions together with the husband and I conclude overall that when considering the fund as a whole, namely $870,331, the wife’s contribution should be assessed at 15%.

Adjustment to be made pursuant to s.75(2)

1. The husband challenges the determination of the Judicial Registrar of the adjustment which should be made pursuant to section 75(2) of the Act.

2. One of the matters which the Judicial Registrar took into account under s.75(2) was the fact that the wife had accepted sole responsibility for the payment of $48,451 worth of debt which was incurred as a result of her children buying a unit which, following its sale, provided for a loss of $48,451. It was submitted by the husband that the fact that the wife was out of pocket by that amount is not a matter which should be taken into account under s.75(2). I do not accept that submission. It is specifically relevant pursuant to sub-section (b) of s.75(2) and otherwise relevant under sub-section (o) of s.75(2). It specifically needs to be taken into account because it appears in the balance sheet as “interim property settlement to wife $48,451”. Its appearance in the balance sheet is suggestive of the fact that it is an asset and not a notional asset. It is relevant to know for a consideration of s.75(2) what assets each party will actually retain based on a division in accordance with assessed contribution.

3. Although it does not loom particularly large in this matter, it does represent a little over 3% of the total pool of assets and superannuation.

4. The learned Judicial Registrar made an adjustment of 10% in favour of the wife having considered the s.75(2) matters which are set out in the judgement. He made the adjustment only in relation to the pool of non superannuation assets. In paragraph 102 of the judgement, the Judicial Registrar said:

   “Taking account of these s.75(2) matters the most significant are the disparity in the asset positions based on contributions and the contributions which the husband made to the welfare of the wife’s children. In my view despite the significant contributions of the husband in this regard, these do not entirely set off the disparity in assets.”

   The Judicial Registrar considered a 10% adjustment in favour of the wife as “a modest” adjustment. Before proceeding further to consider s.75(2), I need to consider the impact of my decision that there should be a 15% assessment of contribution by the wife to the husband’s CSS superannuation. At the conclusion of paragraph 90 of the Judicial Registrar’s judgement, he sets out a table of the consequence of his determination of the parties’ contributions. The husband’s CSS superannuation total figure is now $870,331. Using that figure the adjusted pool of assets becomes $1,518,106. A division of 15% of the CSS value would give the wife $130,550 as her assessed contribution and the husband $739,781 as his assessed contribution. The husband’s total property then based on the assessment of contribution is $1,126,068. The wife’s assessed contribution value is $392,037. The difference between the value of the wife’s assessed contributions and the value of the husband’s assessed contributions is $734,031. That is, the amount by which the husband’s share exceeds the wife’s share.

5. The overall effect of my assessment of the parties contributions is that the assets of the parties are divided as to the husband 74% and as to the wife 26%.

6. The adjustment under s.75(2) of 10% by the Judicial Registrar is said by the husband to be outside the available range. It is submitted on the part of the husband that there should be no adjustment under s.75(2).

7. In his submissions, the husband points to the significant contributions which he made to the wife’s children from her previous marriage, including the payment of school fees and other care which he provided for them as referred to by the Judicial Registrar in paragraph 100 of the judgement. The only financial assistance provided towards the children’s support by their father was the sum of $8000 as a lump sum payment. This sum was provided to the wife late in the period of cohabitation between these parties.

8. The husband submits that the financial future of the wife, having regard to her ongoing employment and health, must be seen as significantly better than that of the husband. In this regard, evidence from Mr C needs to be considered. Again, this evidence was not available to the Judicial Registrar. Mr C says as follows:

   “At [his employment] [the husband] was previously on a base salary of $70,000. In terms of suitability for similar roles, his experience has dated somewhat and [the husband] is relatively less attractive to the […] industry. [The husband’s] main strength lies in his knowledge and familiarity with TRIM database, a prominent records management application. This database is used in a number of industries; defence, government (local council, state government departments and authorities) and legal.

   Were he to apply for [industry] related roles (including government [industry] roles), I believe he would have a fair to medium chance of success. I cannot estimate the likelihood of success in other sectors where TRIM is used as our company does not place people across those sectors.”

9. In his affidavit filed on the 20^th of May 2008, the husband set out evidence of the many applications he had made for employment between April 2005 and December 2007.

10. The husband is currently employed by contract with a Government Commission. That contract concludes in October 2009 at which time the husband will be 54 years of age. Prior to obtaining this work, the husband has given evidence about the job applications he had made and the efforts he had undertaken to try and obtain employment. They are without a doubt considerable.

11. The husband annexes to his affidavit a letter from his employer dated the 14^th of May 2008. The letter explains that the husband is employed on a three year fixed term non-ongoing employment contract which is due to expire on the 1^st of October 2009. Any further employment which the husband might obtain with that organisation would need to be applied for in the normal fashion.

1. The husband says that based on his efforts to obtain employment in the past and the information from his employer, the prospect of his finding further employment must be seen as limited.

2. In paragraph 10 of the husband’s last affidavit he makes a statement about the prospect of his superannuation interest in the CSS being affected by further activity by him in Comsuper, which involvement would be required were he to be employed by a Commonwealth Government Department. No basis for this statement is made and therefore I cannot give it any weight.

3. The husband submits, by contrast, the wife’s future employment appears to have considerable security attached to it.

4. The husband submits his health issues are important for the court to take into account. The importance appears to be largely connected with the likely rejection of the husband for possible employment due to his state of health. The Judicial Registrar in paragraph 92 of his judgement referred to the husband as follows:

   “The husband is 52 years of age. He had suffered from chronic fatigue syndrome when the parties commenced cohabitating but had recovered from the syndrome by the year 2000. As indicated above, the husband has permanent damage to his right wrist. The husband has bulging discs for which condition he attends a physiotherapist and also has massage. He also has permanent damage to his left wrist, arthritis and asthma. He has a leaking heart condition for which he sees a heart specialist once each five years.”

5. There is no challenge to the Judicial Registrars findings as set out in paragraph 92 of his judgement.

6. The husband’s Financial Statement filed on the 20^th of May 2008 shows that he has an annual income of $65,728 before tax.

7. In his determination the Judicial Registrar concluded “despite the limitations in his health referred to above, the husband should be able to continue working in positions similar to his present position for many years.” For my part I could not form that conclusion. I agree with the husband’s submission, to a large extent, in that I do see that the husband can expect to experience considerable difficulty in obtaining future employment.

8. In relation to the wife, the Judicial Registrar said:

   “She works full time as a […] teacher. Her annual income is approximately $69,000 and her employer pays an additional 9% of her salary to superannuation. In my view the wife should be able to continue working in her present or similar capacity for many years.”

9. I would adopt the finding of the Judicial Registrar in relation to the wife as above recited.

10. The Judicial Registrar noted that the wife was 50 years of age and in good health at the time of his judgement.

11. In his submissions the husband drew my attention to the following portion of the Judicial Registrars judgement. This related to the loss sustained by the parties upon the sale of the wife’s children’s unit. I have referred to this matter earlier in these reasons.

    “Another relevant s.75(2) matter is the fact that the wife has accepted sole responsibility for the loss on her children’s unit accepting, as indicated above, $48,451 which, in effect, the parties paid as a preliminary advance to her as part of the property settlement.”

    It was submitted on behalf of the husband that this was not a matter which should have taken into account by the Judicial Registrar in considering what adjustments should be made under s.75(2). It was submitted that the husband had objected to the purchase by the children of the property. It was submitted that it would be inequitable to take this matter into account under s.75(2). I do not agree with that submission. As stated earlier I do not accept that this matter should not be taken into account and I propose to do so.

12. In oral submissions, the husband submitted that one matter not taken into account by the Judicial Registrar which should be taken into account under s.75(2) is the contribution by the husband towards the wife’s income stream. The wife completed all her study during the period of cohabitation and therefore the husband has made a substantial contribution toward her ongoing incoming stream. This was a matter which was not taken into account by the Judicial Registrar in assessing contribution. I agree with that submission and in the context of the exercise I am asked to undertake this fact now needs to be taken into account under section 75(2).

13. It was conceded on behalf of the husband that the financial disparity between the parties in terms of their assets to be retained following assessment of contribution is very significant. However, it was further submitted that the balance of the other matters which favour the wife and the matters which favour the husband for adjustment would balance as equal and therefore give rise to no adjustment at all under section 75(2). In particular, the husband points to the very substantial contribution made by him towards the support of the wife’s children. At the time of the commencement of cohabitation the older child was not yet nine years of age and the younger child was one month away from turning six years of age. At the separation, both girls were over the age of 18 years. The contribution towards the support of the two children over the lengthy period of time which they required support, by the husband, was considerable. In addition, the wife must be seen as having contributed financially to the support of the children and on one view, must therefore be seen as applying funds of her own to their support which would otherwise have been available to contribute to the support of the husband and herself. Further, there was no finding of the Judicial Registrar that the husband had made contribution towards the care and supervision of the children. Even if it be assessed that the wife made the major contribution of the parties to the non financial contributions towards the care of the children then the husbands’ contribution would still have to be considered as significant given the ages of the children at the time of commencement of the cohabitation.

14. As referred to earlier, the wife supports the determination by the Judicial Registrar. I should say however, that in the event of my concluding that the wife’s contribution to the CSS superannuation was less than 30% as determined by the Judicial Registrar, then it was submitted on behalf of the wife such further disparity between the parties’ asset positions based on assessment of contributions would lead to a higher assessment of the amount of adjustment which should be made in favour of the wife.

15. The wife also submitted that the Judicial Registrar made the adjustment of 10% in favour of the wife in the non-superannuation asset pool. She submitted, through her counsel, that there is no justification for restricting the adjustment to the non-superannuation assets and that the adjustment should be across all of the assets where assets include the superannuation pools. That submission appears to me to have considerable merit.

16. The effect of the adjustment made by the Judicial Registrar of 10% to the pool of non-superannuation assets is that the wife received an additional $41,600. That, however, only represented 2.7% of the total assets and superannuation. This, it is submitted by the wife, is inadequate.

17. Each of the parties have emphasised the matters which should be taken into account to assess an adjustment under s.75(2). None of their submissions appears to me to be without merit. Ultimately it is a matter of discretion on behalf of the trial Judge to determine what the adjustment should be. That discretion operates within a wide band of available discretions. For my part, I see no purpose in restricting any adjustment under s.75(2) to the non-superannuation property of the parties. That, in my view, potentially gives rise to an injustice to the wife.

18. I agree with the Judicial Registrar conclusion that the principal matters which operate to cause the adjustment in favour of each party are as follows:

    a)The contribution made by the husband and the wife to the support of the children;

    b)The large disparity in the assets to be retained by each of the parties based on assessment of contribution;

    c)Each party’s health and future employment prospects favour an adjustment in favour of the husband.

    The other matters raised by the parties each are deserving of minor adjustments one way or another.

19. Having regard to all those matters, I would exercise my discretion in determining that there still is required an adjustment in favour of the wife and that adjustment should be 10%.

20. The conclusion therefore is that the wife should receive 36% of the total pool of assets and superannuation, giving her net assets and superannuation of $546,518. The husband would receive $971,588 worth of assets and superannuation.

Just and equitable

1. In my view, given the circumstances of this particular case, a division which saw the wife receive $546,518 worth of assets and superannuation and the husband $971,588 worth of assets and superannuation would give rise to a just and equitable outcome.

Should there be a superannuation splitting order in favour of the wife in respect of the husband’s CSS interest?

1. The next matter to be determined is how the assets and superannuation should be divided between the parties.

2. In this respect the issue appears to be principally about whether or not the wife is to have a splitting order in relation to the husband’s CSS superannuation. In the orders made by the Judicial Registrar, he provided for a splitting order in the sum of $43,892 against the husband’s interest in STA super, also referred to as “Australian Super”. In addition, he made a splitting order in respect of the husband’s CSS superannuation where he required a 30% splittable payment. The two splitting orders in terms of their quantum coincided directly with the Judicial Registrar’s determination of the assessment of contribution to each of the funds by the wife.

3. Following the same philosophy adopted by the Judicial Registrar the splittable order in relation to the CSS superannuation fund would, based on my determination, change from 30% to 15%.

4. The husband opposes a splitting order in respect of the CSS superannuation fund. He proposes that the Court should make an order which increases the splitting order in relation to the husband’s interest in the STA super fund. The husband’s interest in that fund is valued at $155,526.

5. I am told by senior counsel for the husband, and accept, that the husband’ s fund with Australian Super (STA) can be redeemed in a cash payment upon the husband meeting the normal payment requirements of the fund. The husband says that in those circumstances the wife should take a larger share out of the Australian Super (STA) to compensate her for the interest I have found her to have in the CSS superannuation as her assessed contribution. The husband for his part does wish to keep his CSS super intact and is opposing a splitting order. The husband says that the wife should take a discount on the amount of the split of the Australia Super (STA) fund (to be taken in lieu of her assessed interest in the CSS fund) because she will receive that benefit far earlier than she would have received the totality of that benefit under the CSS fund and it is a sum certain.

6. There are a number of reasons why the husband’s submissions make sound sense. The husband, for example, has grave reservations about his future employment and he will, therefore, substantially benefit from receiving an indexed pension for life.

7. Somewhat unusually, in my experience, the wife in this case is pursuing a splitting order in respect of the CSS superannuation fund of the husband’s. Again, that is understandable. The benefit from the superannuation fund is substantial. The fact that it is indexed is highly attractive. The fact that it is a pension for the life of the husband is also substantially attractive. On the other hand, the extent of the benefit is governed by the longevity of the husband and to that end the wife takes a form of gamble.

8. I am attracted to the reasoning of the Judicial Registrar in respect of why he determined the wife should be able to obtain a splittable interest in the CSS fund. I adopt the reasons provided by the Judicial Registrar for reaching a conclusion that a splitting order should be made in respect of the CSS fund. I also have no evidence as to the amount of discount, if any, which should be applied to the portion of the STA Super Fund which would be provided to the wife in lieu of her 15% interest assessed in the CSS Fund. It seems to me the only just and equitable solution to the problem is to make splitting order in relation to the CSS superannuation interest. I would propose therefore, that the wife’s interest in the CSS fund be, before any further adjustment resulting from my determination under section 75(2), 15%.

9. The 10% adjustment of the assets in favour of the wife is worth $182,173. The Judicial Registrar determined that the adjustment he gave the wife should be taken from the asset pool excluding superannuation. The parties have not really had the opportunity to address me on how the 10% adjustment under s.75(2) should be spread across the assets and superannuation and so I will reserve that matter for further submission or agreement.

Conclusion

1. I was asked by counsel for the husband, without opposition from the counsel for the wife, to refrain from making orders until such time as my reasons had been published and the parties have taken advantage of an opportunity to provide a minute of order proposed in relation to the division of assets following the sale of the K property. That minute of order would also need to have regard to my determination which appears in these reasons. I will accede to that request and publish these reasons and re-list the matter before me at a time convenient to the parties to hear any further submissions in relation to the form of the orders to be made and how the adjustment determined by me as appropriate under s.75(2) should be spread across the body of assets and superannuation to give rise to a just and equitable order.

2. Notwithstanding that the parties were unable to settle this case when it came on for hearing before me, a matter of great disappointment to me given the very high calibre of legal representation of the parties, I would hope that greater sense might now apply given that I have made the decisions set out herein and that the parties might with proper guidance from their lawyers be able to settle how the 10% section 75(2) adjustment should be applied to the assets and superannuation and also be able to settle the form of orders to be made by me.

I certify that the preceding sixty-two 62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate: 

Date:  17 June 2008