Jarvis & Seymour
[2016] FCCA 1676
•5 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JARVIS & SEYMOUR | [2016] FCCA 1676 |
| Catchwords: FAMILY LAW – Property – alteration of interests – (omitted) pension – whether contribution rendered more arduous post-separation – assessment of future needs – how many pools of assets. |
| Legislation: Family Law Act 1975, ss.75(2), 79 |
| Cases cited: Bevan & Bevan [2013] FamCAFC 116 Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395 |
| Applicant: | MS JARVIS |
| Respondent: | MR SEYMOUR |
| File Number: | WOC 552 of 2014 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 4-5 February 2016; 1-2 June 2016 |
| Date of Last Submission: | 2 June 2016 |
| Delivered at: | Wollongong |
| Delivered on: | 5 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Millar |
| Solicitors for the Applicant: | Rita Thakur & Associates |
| Counsel for the Respondent: | Mr Richards |
| Solicitors for the Respondent: | Dribbus Kovacevic Lawyers |
ORDERS
That the monies held by the solicitors for the Husband in their controlled monies account be divided as follows:
(a)$201,499.05 to the Husband;
(b)$245,337.95 to the Wife;
(c)52.5 per cent of any remaining balance to the Husband;
(d)The remaining balance to the Wife.
That the Wife be the sole owner of her Mitsubishi (omitted) motor vehicle registration number (omitted).
That the Husband be the sole owner of his Holden (omitted) motor vehicle registration number (omitted).
That a base amount of $380,389 is allocated, as required by s.90MT (4) of the Family Law Act 1975, to Ms Jarvis out of Mr Seymour's (member number (omitted)) interest in the (omitted) Superannuation Scheme.
That in accordance with paragraph 90MT (1) (a) of the Family Law Act 1975:
(a)Ms Jarvis is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b)Mr Seymour's entitlement to payments out of their interest in the (omitted) Superannuation Scheme and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this order.
That the Trustee of the (omitted) Superannuation Scheme ("the Trustee") shall do all such acts and things and sign all such documents as may be necessary to:
(a)Calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for Ms Jarvis by clause 5 of this order; and
(b)Pay the entitlement whenever the Trustee makes a splittable payment out of Mr Seymour's interest in the (omitted) Superannuation Scheme.
That these orders have effect from the operative time and the operative time for this order is two (2) weeks from the date when these Orders are served upon the Trustee.
That this order binds the Trustee of the (omitted) Superannuation Scheme.
That the Husband and Wife have the sole right, title and interest in:
(a)Any chattels, goods, furnishings and other property which are, at the date hereof, in their possession respectively.
(b)Any moneys, shares, debentures which stand in their sole name respectively at the date hereof.
IT IS NOTED that publication of this judgment under the pseudonym Jarvis & Seymour is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 552 of 2014
| MS JARVIS |
Applicant
And
| MR SEYMOUR |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain the Court’s Orders in a financial dispute between a husband and a wife.
Background
The Applicant Wife in this case is 43 years old. She describes herself as working in (occupation omitted). She lives in a suburb of (omitted) together with her three children who are currently aged 18, 16 and 13. The Respondent in this case is her husband. He is a 50 year old retired (occupation omitted) who is currently in receipt of a hurt on duty pension. He lives in another suburb of (omitted).
The Husband and the Wife in this case commenced cohabitation in (omitted) 1996. At that time, the Husband had been a (occupation omitted) for 10 years and the Wife was working as a (occupation omitted). They married in 2004 and separated in 2012, four years before these reasons for judgment were published. They thus lived together for 16 years.
There are some relatively uncontentious background facts. Not only had the Husband been working in the (employer omitted) before cohabitation but he had been a member of the relevant (omitted) superannuation fund. By the time he met the Wife, he owned a property at Property O2. In fact, the Wife was originally his tenant there. The property had been purchased for $128,000 and there is a dispute (which the Court is unable to resolve) about precisely how much he owed on the property at the date of cohabitation. In the end result, nothing turns on this.
The Husband and the Wife commenced living in the Husband’s property at Property O2. The eldest child was born in 1998, and the middle child in 2000.
The parties then bought the property next door, i.e. Property O1 and sold Property O2. It is common ground that about $200,000 from the sale of Property O2 was applied to the purchase and subsequent construction of a house, on Property O1.
The next year, in 2001, the Wife inherited $50,000 which, it is common ground, was supplied towards the construction cost of the home on Property O1.
One of the issues for the Court is to assess the initial contribution that each made at the commencement of their relationship. The Wife concedes that the Husband had 10 years membership in his superannuation fund. There is no dispute that about $200,000 was applied from the sale proceeds of the Husband’s property at Property O2. Whilst it could be argued that the Wife made some contribution to this amount in the period between cohabitation in 1996 and the property sale in 2000, it was not seriously asserted in her case that this was a substantial or meaningful contribution. The Husband does not dispute that the Wife inherited $50,000 and that this was used in the construction of the house.
From a financial perspective, it is clear that within a few years of the commencement of cohabitation, the financial contribution made by the Husband was substantially greater than that of the Wife and perhaps as much as four times greater, excluding the superannuation. Of course, much happened after cohabitation.
In 2002, the Husband and the Wife caused a new home to be constructed at Property O1. There is much dispute between them as to who did what. Like so many of the matters that the Husband and the Wife put in dispute in this case, not much turns on it. The Court is satisfied from all the evidence that the Husband did much of the work himself assisted by friends. It is probably the case that the parties saved money as a result of the work they did themselves and the contacts they had. It is impossible to quantify this benefit. What is equally clear, however, is that the Wife did what she could in circumstances where, in 2002, she had two children under the age of four for whom she was primarily responsible to care. In 2002, moreover, she fell pregnant with their third child born in 2003. It thus could not be said that the construction of their home results in a disproportionate assessment of contribution in favour of one spouse.
Between about 2007 and 2012, the Wife entered into a (omitted) business which in the fullness of time turned out to be a financial disaster for them. All up, the parties probably lost about $250,000. The Husband was very bitter and angry about this. Indeed, he continues to be so. In any event, no doubt as a result of receiving good legal advice, it was not argued as part of his case that the losses incurred should be treated in some special way or allocated to the Wife, in whole or in part.
In the later years of the marriage, the Husband started experiencing difficulties in his workplace. He was initially suspended in 2009 but reinstated in 2010. In 2010, he was charged with indecent assault of a co-worker which he ultimately successfully defended. The parties separated for four months in 2010. In 2012, the Husband was discharged from the (employer omitted) and deemed medically unfit. He was diagnosed then with adjustment disorder, depression and anxious mood. The evidence suggests he continues to suffer from these mental health conditions. He ceased receiving his wage from the (employer omitted) but commenced receiving a pension at 64 per cent of his previous income and since then this has increased to 72.5 per cent.
During the course of the Husband’s employment as a (occupation omitted) he was exposed to many, many traumatic events. All of the evidence before the Court suggests that this trauma had an adverse impact on the Husband’s mental health and his behaviour generally. It unquestioningly made life difficult not just for him but for his family as well. Part of the Wife’s claim in this case is that her contribution was rendered significantly more arduous as a result of the changes in the Husband’s behaviour in the years leading up to separation and his violent behaviour in the post separation period. The Court will find that there is substance to the Wife’s claim and this will be discussed below.
When the Husband was discharged from the (employer omitted), in addition to receiving his (employer omitted) pension, he received a number of lump sum payments.
The separation took place in July 2012. It was both tumultuous and emotionally difficult for both parties. He left the family home. The family home was more than a physical space for him, it was significant to him in a psychological sense because of the physical, emotional and financial labours that he believes he put into it.
In the immediate post separation period there were a number of financial transactions undertaken by each of the Husband and the Wife, in respect of which evidence was led. Where these transactions are relevant to the constitution of the balance sheet, they are discussed below.
For a number of years the children spent time with the Husband either in the home or outside of the home. There were periods when this was regular and consistent and other periods when it was sporadic and ad hoc. There was a period during the course of these proceedings when the Husband appears to have lost his relationship with his children but as at the final day of the hearing, the Court heard evidence that the situation might be improving albeit slowly.
In 2013, the Husband’s hurt on duty pension increased to a rate of 72.5 per cent. He suffered a deterioration in his psychiatric condition that year including being scheduled and a number of psychiatric admissions. In 2013, the Husband alleges and the Court finds, that the Wife commenced a relationship with a Mr W. The precise nature of this relationship was the subject of evidence and will be discussed below. The commencement of this relationship appears to have triggered a completely disproportionate reaction by the Husband as a result of which the Court will find, he perpetrated family violence against the Wife and the children or certainly in the presence of the children. His behaviour was nothing short of vile. Numerous Apprehended Violence Orders were made against him. He treated these with impunity and was found to have breached them. Criminal charges ensued. The Court will find unreservedly, that the Wife’s contribution as a parent to the three children was rendered more arduous in this period because of the Husband’s behaviour.
For a period of time after leaving the (employer omitted), the Husband worked in various jobs notwithstanding his mental health condition. He asserts and the Court accepts, that he probably last undertook paid work in August 2014. Whilst the Wife asserted that he did work since then, the evidence does not allow that finding to be made. Indeed, the evidence before the Court particularly from the Husband’s treating psychiatrist, Dr S, leads the Court to find that it is highly unlikely that the Husband will be able to work again. The Husband asserts that working “makes him mad” and the Court accepts that this is a fair assessment of the situation. The mental health conditions experienced by the Husband as a result of his (employment omitted) are serious and ongoing.
The present proceedings were commenced in 2014. The matter was heard on 4 and 5 February, and then 1 and 2 June 2016. There is no doubt in the Court’s mind that the loathing that the Husband and the Wife each have for each other contributed to this matter unnecessarily taking four days of hearing time. It is clear that they instructed their respective Counsel to thoroughly test the evidence of the other. In this regard, greater criticism can be levelled at the Husband than the Wife. He instructed his Counsel, Mr Richards, to cross-examine on issues that were ultimately not contentious. The loathing that each has for the other was palpable at all times during the hearing.
The order proposed by the Wife, as at the close of the hearing, is reproduced in the first Schedule to these reasons. In effect and subject to the Court’s acceptance of the pool of assets that she contended for, her Counsel, Mr Millar submitted that she should receive 57.5 per cent of the non-superannuation asset, subject to an adjustment back in the Wife’s favour for $35,758.50 which she contends was the direct financial loss incurred as a result of the Husband’s failure to comply with Orders made by His Honour Judge Monahan on 27 November 2014. On behalf of the Wife, it was otherwise contended that the superannuation should be split as to 60 per cent to the Husband, and 40 per cent to the Wife. To be clear, in relation to non-superannuation assets, the Wife was contending that contribution to the date of the hearing should be assessed as being equal and there should thereafter be a 7.5 per cent adjustment in her favour under s.75(2), particularly to reflect the fact that the children live with her. In relation to the superannuation assets, she contended that contributions should be assessed as to 65 per cent in his favour, with a five per cent adjustment under s.75(2) in her favour thus bringing it down to 60 per cent. There is an important issue in this case about the valuation that the Court should adopt of the Husband’s (omitted) superannuation scheme. The Court will need to make a determination in that regard.
The Orders sought by the Husband as at the close of the hearing is reproduced in the second Schedule to these reasons. Mr Richards submitted that the Court would treat the assets as three separate pools: the non-superannuation pool, the Husband’s invalidity benefit pool and the Husband’s retirement benefit pool. In relation to the non-superannuation assets, the Husband contended that superannuation would be assessed as to 75 per cent in his favour but that the wife might receive an adjustment between five and 10 per cent under s.75(2). He submitted that the Wife made no contribution to the invalidity benefit component of his superannuation as that was referrable to his hurt on duty claim which arose after the date of separation and which he receives by way of income. In relation to the retirement benefit component of the superannuation, he submitted that having regard to the lengthy period of contribution pre-cohabitation, this should be assessed as to s.72.5 per cent in his favour. Overall, Mr Richards’ submission was that the Husband would receive 65 per cent of the non-superannuation assets and 85 per cent of the superannuation assets.
The Evidence
In the Wife’s case, she relied on her Affidavit, an Affidavit by Mr W, affidavits by Ms S, Dr A, Mr I, and Mr G. Only Mr W and Mr G were required for cross-examination in addition to the Wife. In the Husband’s case he relied on his Affidavit as well as an Affidavit from his father and from Dr S.
The Applicable Law
This is an application under s.79 of the Family Law Act 1975 which relevantly provides:
Alteration of property interests
(1) In property settlement proceedings, 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 marriage or either of them--altering the interests of the parties to the marriage in the property; or
(b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c) an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the marriage; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
(2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Section 79(4) incorporates the provisions contained in s.75(2) of the Act, which states:
(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
In Bevan & Bevan [2013] FamCAFC 116, the Full Court of the Family Court of Australia considered the High Court’s decision in Stanford & Stanford [2012] HCA 52, which provided guidance on how s.79 was to be interpreted and implemented. Bevan endorsed the continuing application of the four-step approach articulated by the Full Court in Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395, but on the basis that it is a shorthand distillation of the words of s.79, as opposed to being a statutory edict. The four steps articulated in Hickey at paragraph 39 are:
a)Identify and value the property, liabilities and financial resources of the parties; and
b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and
c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.
The decisions in Stanford and Bevan also emphasise the importance of making findings that any order is just and equitable for the purposes of s.79(2), independent of the s.79(4) process. In most cases, such as the present one, it makes no difference to the outcome of the alteration of property interests exercise. Even if the just and equitable consideration were treated as a threshold issue in this case the parties have, by their actions (separation, and re-ordering of their financial lives since then), and claims (divergent claims about their property under s.79 of the Act), indicated that they themselves consider it just and equitable that some order be made under s.79 adjusting their property interests as presently held. It is clearly just and equitable in this case to make an order.
Both decisions also emphasise the importance of identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. This is not inconsistent with step one in Hickey.
One of the legal issues that arises is whether I should adopt a global or asset-by-asset approach to contribution. The authority in this regard is the High Court’s decision in Norbis v Norbis (1986) 161 CLR 513 per Wilson and Dawson JJ at 534-5. It is clear from this statement of the law that either approach is available to me, in part or in whole. My discretion in this regard should be exercised having regard to the facts of this case.
Another issue in this case is how, precisely, I should weigh and assess the initial contribution made by the parties. In this regard, I need to consider the decision of the Full Court in Pierce v Pierce (1998) FLC 92-844. A useful recent decision of the Full Court examines its earlier decision in Pierce v Pierce together with a later case. In Williams & Williams [2007] FamCA 313 the Full Court states as follows at paragraphs 26, 27, 28, 29 and 32:
26. We think there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution between the parties Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing of the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in doing so it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.
27. In Pierce v Pierce when speaking of the relevance to be paid to initial contributions the Full Court (Ellis, Baker and O’Ryan JJ) referred to Fogarty J in Money v Money (1994) FLC 92-485 at 81,054; (1994) 17 Fam LR 814 at 816:
…respective contributions of the parties over a long period of marriage “offset” the significance which might otherwise be attached to a greater initial contribution by one party…ultimately, when it comes to the trial such a contribution is one of a number of factors to be considered. The longer the marriage the more likely it is that there will be latter factors of significance and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstances of the individual case reduce the significance of the original contribution.
28. The Full Court (Ellis, Baker and O’Ryan JJ) then said at [28]:
In our opinion it is … a question of what weight is to be attached, in all the circumstances, to the initial contributions. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.
29. Pierce v Pierce was a case in which the husband brought in $200,000 cash into the relationship. He applied that money towards the purchase of a matrimonial home. He was employed throughout the marriage and supported the wife who, whilst in some paid employment primarily attended to domestic tasks and taking care of the children. The Full Court assessed the parties’ respective contributions to a pool of $320,000 as 70 per cent in favour of the husband and 30 per cent in favour of the wife at the end of a 10 year relationship.
32. In Hunt v Zuryn (2005) FLC 93-226; (2005) 34 Fam LR 169 the Full Court (Kay, May and Boland JJ) allowed an appeal in a property case where a pool of assets of $1.12million had been assessed for contribution purposes as 75 per cent in favour of the husband and 25 per cent in favour of the wife. The Court in allowing the appeal indicated that an assessment of 75:25 fell outside the realms of an acceptable range saying at 79,730; 170:
Such an assessment ought adequately recognise that much of the parties’ wealth can be attributed to the capital growth in the assets introduced by the husband at the commencement of the marriage but at the same time bringing into consideration a myriad of other contributions each made in the course of their relationship.
Accordingly, I must not only identify the contributions of each party, but also assess the weight to be attributed to these contributions having regard to many factors including what has occurred afterwards.
A problem that commonly arises and indeed does arise in this case, relates to property that once existed but no longer does. This disposed of property may still be significant, however. As the Full Court said in Bevan, such disposals must be dealt with carefully. In practical terms this means carefully assessing the evidence about the disposal, attempting to quantify it if this is at all possible and then assessing its weight whilst neither placing too much, or too little weight on it. It would seem that notionally adding back such property may still be appropriate in some cases. In Vass & Vass [2015] FamCAFC 51, the Full Court said at [138]:
There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties. We reject any suggestion that the decision of Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 – or, more particularly, the decision of the High Court in Stanford & Stanford [2012] HCA 52; (2012) 247 CLR 108 – is authority for any necessary contrary solution.
The final legal issue that arises in this case is that raised by the Wife – the extent, if at all, that her contributions were rendered more arduous as a result of various aspects of the Husband’s conduct. The authority is the Full Court’s decision in Kennon & Kennon (1997) FLC 92-757.
A useful summary of the decision is contained at page 84, 294 of the report:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79. We prefer this approach to the concept of ''negative contributions'' which is sometimes referred to in this discussion.
In the above formulation, we have referred only to domestic violence, for the reasons which we indicated earlier, but its application is not limited to that…
However, it is important to consider the ''floodgates” argument. That is, these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this Court to fault and misconduct in property matters ¾ a circumstance which proved so debilitating in the past. In addition, there is the risk of substantial additional time and cost.
However, in our view, s 79 should encompass the exceptional cases which we described above. It would not be appropriate to exclude them as a matter of policy because of this risk. It is a matter of commonsense for the lawyers involved and, where that may not be sufficient, it is a matter for a firm hand by the Court at an early stage when a case appears to raise those issues.
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions)…
The passage from the Full Court's decision in Kennon clearly indicates that it is a relatively narrow band of cases to which a Kennon-type adjustment would apply. The Full Court's decision focuses on conduct during the marriage, but not afterwards, which suggests the concept was not intended to apply to post-separation contribution. There is a clear emphasis by the Full Court on the need to establish that the violence had a discernable impact on the contributions made by one party. The focus seems to be on establishing either that there has been a significant adverse impact on a party's contributions, or that their contributions are significantly more arduous than they ought to have been. As I read the Full Court's decision, little or no room is left for inference. The claim can only be established by probative evidence that satisfies the Court on the balance of probabilities.
The Balance Sheet
Shortly before closing submissions, a joint balance sheet was submitted by both Counsel for the parties. That balance sheet became exhibit X and is reproduced below.
| No. | Non Superannuation Assets | Ownership | Wife's Value | Husband's Value |
| 1 | Sale Proceeds of Property O1 inclusive of interest | Joint | $ 446,837.00 | $ 446,837.00 |
| 2 | Savings (omitted) Bank Account No (omitted) | Wife | $ 5.00 | $ 5.00 |
| 3 | Mitsubishi (omitted) | Wife | $ 12,500.00 | $ 20,000.00 |
| 4 | (omitted) Savings | Husband | $ 1,904.00 | |
| 5 | (omitted) Credit Union | Husband | $ 200.00 | $ 200.00 |
| 6 | (omitted) Shares | Husband | $ 7,820.00 | $ 7,820.00 |
| 7 | (omitted) Holden Astra | Husband | $ 1,000.00 | |
| 8 | Holden (omitted) | Husband | $ 7,000.00 | $ 6,000.00 |
| 9 | Household Contents | Husband | Not Applicable | $ 300.00 |
| 10 | Household Contents | Wife | Not Applicable | $ 4,000.00 |
| 11 | 2 Computers and 1 Ipad | Wife | $ 500.00 | |
| 12 | Interim Distribution to the Wife | Wife | Not Applicable | $ 50,000.00 |
| 13 | Interim Distribution to the Husband | Husband | Not Applicable | $ 50,000.00 |
| 14 | Goods Subject to Flexirent Lease | Wife | $ 8,605.00 | |
| 15 | Wife's Paid Costs | Wife | $ 33,337.00 | |
| 16 | Husband's Paid Costs | Husband | $ 42,849.00 | |
| SUB-TOTAL (NON-SUPER ASSETS) | $ 553,952.00 | $ 593,767.00 | ||
| No. | LIABILITIES | Ownership | Wife's Value ($) | Husband's Value ($) |
| 17 | (omitted) Personal Loan | Wife | $ 13,200.00 | |
| 18 | (omitted) Mastercard | Wife | $ 1,000.00 | |
| 19 | Flexirent Lease | Wife | $ 8,605.00 | $ 8,605.00 |
| 20 | Child Support Debt | Husband | ||
| SUB-TOTAL (LIABILITIES) | $ 22,805.00 | $ 8,605.00 | ||
| TOTAL NON-SUPERANNUATION ASSETS | Wife Asserts | Husband Asserts | ||
| Non-super assets | $ 553,952.00 | $ 593,767.00 | ||
| LESS liabilities | $ 22,805.00 | $ 8,605.00 | ||
| TOTAL | $ 531,147.00 | $ 585,162.00 | ||
| No. | SUPERANNUATION ASSETS | Ownership | Wife's Value ($) | Husband's Value ($) |
| 21 | (omitted) | Wife | $ 10,902.00 | $ 10,902.00 |
| 22 | (omitted) | Wife | $ 40.00 | $ 40.00 |
| 23 | (omitted) Super | Wife | $ 239.00 | $ 239.00 |
| 24 | (omitted) Superannuation Scheme | Husband | $ 1,102,855.00 | $ 1,102,855.00 |
| 25 | (omitted) | Husband | $ 12,747.00 | $ 12,747.00 |
| 26 | (omitted) | Wife | $ 4,314.00 | $ 4,314.00 |
| SUB-TOTAL (SUPER) | $ 1,131,097.00 | $ 1,131,097.00 | ||
| FINANCIAL SUMMARY | Wife's Value ($) | Husband's Value ($) | ||
| Non-super assets | $ 553,952.00 | $ 593,767.00 | ||
| PLUS superannuation | $ 1,131,097.00 | $ 1,131,097.00 | ||
| LESS liabilities | $ 22,805.00 | $ 8,605.00 | ||
| TOTAL | $ 1,662,244.00 | $ 1,716,259.00 |
A number of issues flow from the balance sheet.
Item 1 represents the sale proceeds of Property O1, which is kept in an interest-bearing trust account. The actual balance at the time the Orders of the Court are implemented may well be different and so the Orders will need to take this into account.
There is a dispute about item 3, the Wife's Mitsubishi (omitted) motor vehicle. The Wife’s value of $12,500 is in accordance with her Financial Statement but even in her own affidavit she acknowledges that the predecessor to this vehicle was written off and the insurance company paid her $26,250. She spent $20,000 to purchase the current motor vehicle and used the remaining funds on what even the Husband agreed was reasonable living expenses (he did not content for an add-back in that regard). On his behalf, however, it is submitted that it is inequitable from his perspective to treat the value as only being $12,500 in circumstances where $26,250 is, in effect, to be treated as $12,500.
The Wife’s evidence in this regard is contained in her affidavit of 22 January 2016 at paragraph 146. What the Court does not know is whether she purchased the motor vehicle from her brother at market value or otherwise. It is unknown how she claims that a vehicle purchased less than two years ago for $20,000, is now worth $12,500. One can understand the Husband’s annoyance about this. One trusts that both the Husband and the Wife understand the Court’s frustration about this. Directions were made about the provision of proper valuation evidence in the event that there is a dispute about the same. No expert evidence was led in this regard. It would not have been difficult to lead expert evidence about the value of a comparatively recent model motor vehicle. All the Court can do, in the circumstances, is find that the vehicle is valued at $12,500, being an admission by the Wife.
There is a dispute about item 4, an (omitted) savings account in the Husband’s name. There is no dispute that this is the current balance but the Husband contends that the savings account represents what is left of the interim distribution that he received pursuant to the order of Judge Monahan and which is dealt with at item 13. As it turns out, the Court will accept the Husband’s submission about how to treat the interim distribution and thus finds that item 4 should read nil.
There is a dispute about items 7 and 8, being motor vehicles owned by the Husband. Again, there is no valuation evidence notwithstanding the directions made in this regard. All the Court can do in these circumstances is to accept the Husband’s value as an admission against interest. Thus item 7 will read nil and item 8 will read $6,000.
There is a dispute about items 9 and 10. The Court chooses to ignore these items and treat them as having a nil value. There is no expert evidence. So many years have elapsed since the date of separation that it would be mere speculation to attribute any lay estimate to the value of these items.
The Husband does not appear to put in dispute item 11.
Items 12 and 13 represent the $50,000 that each received by way of an interim distribution effected by Orders made by Judge Monahan. The Wife contends that no adjustment should be made in this regard because so much of it is attributable to paid legal costs represented at items 15 and 16. The Husband contends that this is an unfair result for him especially since the manner in which the Wife gave evidence about how she spent $20,000 (referred to at paragraph 140 of her Affidavit) was impossible for him to challenge. The Court accepts the Husband’s submission. It is fairer to both parties to simply add-back the $50,000 they received but disregard items 15 and 16 being paid legal costs in circumstances where it is desirable, in the Court’s opinion, to avoid a further microscopic examination of the post-separation financial affairs of the parties. They both knew at the time that an interim distribution was sought that the Court could, indeed probably would, add these monies back. Items 12 and 13 should read $50,000 but the corollary is that items 15 and 16 should read nil, otherwise there would be double dipping.
There is a dispute about item 14, which the Husband contends to be goods subject to a flexi-rent lease, the offsetting liability of which is referred to at item 19. He contends that, in circumstances where the Wife has not led evidence about the current market value of goods subject to the flexi-rent lease, the value should simply be offset by the liability or in effect, both items be removed from the balance sheet. The Court agrees in this regard with the Husband. The Wife’s Financial Statement should have dealt with the asset value of the items subject to lease but it does not. The Court finds that both items 14 and 19 should read nil.
There is a dispute about items 17 and 18, being personal liabilities of the Wife. The fundamental character of these debts is post-separation in a case where the period of separation is quite lengthy. Some of these loans were refinanced. It is impossible for the Court to ascertain whether any part of the current debt is somehow attributable to the date of separation. In the circumstances, items 17 and 18 should be treated as the Wife’s personal and post-separation liabilities and not brought on to the balance sheet.
Item 20 was not pressed by the Wife and should read nil.
The remaining item in respect of which there appeared to be an issue was item 24, the value of the Husband’s (omitted) superannuation scheme. The Wife conceded that the value should be $1,102,855, based on the Husband’s current pension. The evidence of valuation in this regard was prepared by Mr G in his two reports which were annexed to his Affidavits of 24 October 2014 and 19 May 2016. Mr G makes it clear in his report that the basis of the figures is the current pension received by the Husband, i.e. 72.75 per cent of his attributed salary of office. However, he recognised that a disabled member is able to apply for an additional amount to be paid to them with the additional amount being dependent on the member’s degree of incapacity for work outside the (employer omitted) and the risk to which the member was required to be exposed during the course of their employment, which members of the general workforce would not normally be required to be exposed to. He was asked, by both parties jointly, to provide estimates of the gross value of the pension benefit if the Husband’s current pension were to increase by 12.25 per cent, 19.75 per cent, and 27.25 per cent. He calculated that the gross value of the pension benefit would be $1,288,560, $1,402,256, and $1,515,953 respectively.
The Wife’s case, and the amount reflected in her Minute of Order, was that the Court should treat the Husband as being likely to exercise the statutory right that he has to apply for an increase in his hurt on duty pension, assuming that he would be granted an increase of 19.75 per cent, thus resulting in a gross value of $1,402,256. In effect, this would be to adopt the middle of the range contemplated by Mr G, i.e. between the 85 pension and 100 per cent pension that represented the range of possible increases for the Husband. The Husband strongly opposed any such notion of adjustment, noting that it would result in a significant increase in the size of the asset pool.
The difficulty in the Wife’s case is that there is no evidence that the Husband would apply for an additional amount to be paid to him and that even if he did apply, that it would be granted. The Court is unable to find based on the Husband’s evidence, that he will apply. The Court cannot find, on the evidence before it, that he has made any enquiries about this entitlement. The Court cannot rule out the possibility that he has consciously not made the enquiry in the circumstances of a pending family law property settlement but that is not a sound basis on which to make a finding of what appears to be no more than a hypothetical at this stage. Not enough is known about whether the risks that the Husband was exposed to during the course of his (omitted) work would fall into the category that would justify an additional percentage. The Court does not accept the Wife’s submissions that the Husband’s entitlement should be treated even notionally as greater than $1,102,855. The Court accepts, however, that the possibility that the Husband would seek a greater pension is a relevant s.75(2) factor albeit a factor that is very difficult to assess.
Having regard to the above findings, therefore, the pool of assets is as follows:
| No. | Non Superannuation Assets | Ownership | Court’s value | |
| 1 | Sale Proceeds of Property O1 inclusive of interest | Joint | $ 446,837.00 | |
| 2 | Savings (omitted) Bank Account No (omitted) | Wife | $ 5.00 | |
| 3 | Mitsubishi (omitted) | Wife | $ 12,500.00 | |
| 4 | (omitted) Savings | Husband | NIL | |
| 5 | (omitted) Credit Union | Husband | $ 200.00 | |
| 6 | (omitted) Shares | Husband | $ 7,820.00 | |
| 7 | (omitted) Holden Astra | Husband | NIL | |
| 8 | Holden (omitted) | Husband | $ 6,000.00 | |
| 9 | Household Contents | Husband | NIL | |
| 10 | Household Contents | Wife | NIL | |
| 11 | 2 Computers and 1 Ipad | Wife | $ 500.00 | |
| 12 | Interim Distribution to the Wife | Wife | $ 50,000.00 | |
| 13 | Interim Distribution to the Husband | Husband | $ 50,000.00 | |
| 14 | Goods Subject to Flexirent Lease | Wife | NIL | |
| 15 | Wife's Paid Costs | Wife | NIL | |
| 16 | Husband's Paid Costs | Husband | NIL | |
| SUB-TOTAL (NON-SUPER ASSETS) | $ 573,862.00 | |||
| No. | LIABILITIES | Ownership | Court’s value | |
| 17 | (omitted) Personal Loan | Wife | NIL | |
| 18 | (omitted) Mastercard | Wife | NIL | |
| 19 | Flexirent Lease | Wife | NIL | |
| 20 | Child Support Debt | Husband | NIL | |
| SUB-TOTAL (LIABILITIES) | $ 0 | |||
| TOTAL NON-SUPERANNUATION ASSETS | ||||
| Non-super assets | $ 573,862.00 | |||
| LESS liabilities | $ 0 | |||
| TOTAL | $ 573,862.00 | |||
| No. | SUPERANNUATION ASSETS | Ownership | Court’s value | |
| 21 | (omitted) | Wife | $ 10,902.00 | |
| 22 | (omitted) | Wife | $ 40.00 | |
| 23 | (omitted) Super | Wife | $ 239.00 | |
| 24 | (omitted) Superannuation Scheme | Husband | $ 1,102,855.00 | |
| 25 | (omitted) | Husband | $ 12,747.00 | |
| 26 | (omitted) | Wife | $ 4,314.00 | |
| SUB-TOTAL (SUPER) | $ 1,131,097.00 | |||
| FINANCIAL SUMMARY | Court’s value | |||
| Non-super assets | $ 573,862.00 | |||
| PLUS superannuation | $ 1,131,097.00 | |||
| LESS liabilities | $ 0 | |||
| TOTAL | $ 1,704,959.00 | |||
Assessing Contribution
As foreshadowed earlier in these reasons, the Court finds that at the commencement of cohabitation the Husband made a substantially greater contribution than the Wife did in a financial sense. In many respects this is reflected in the Wife’s own submissions about how contribution should be assessed. In any event, he had been contributing to his superannuation for 10 years. Within a few years of cohabitation the fruits of his ownership of the property at Property O2 amounted to $200,000. A short time thereafter, the inheritance that the Wife brought into the relationship was $50,000. The difference in contributions is not just substantial from an objective standpoint but it was very important to the parties because it enabled them to rapidly acquire equity in their home which would in the normal course otherwise have taken many years to acquire.
Between the time of that initial contribution and the date of separation, the Court finds the contributions should be assessed equally. The Husband worked fulltime and probably earned more than the Wife. The Wife worked part time when she was not home at the time of the birth of the children but she was primarily responsible for homemaking and parenting. The petty disputes between the Husband and the Wife about what they each did in this period and what the other did not do was unbecoming and merely reflected the loathing that they have for each other. When their evidence is viewed objectively as the Court does, they performed different roles in the relationship but the contribution that they made, financially and non-financially direct and indirect as homemaker and as parent is to be treated as equal. This takes into account the ups and downs of their relationship up until the time of separation, i.e., the Wife’s struggling business, the Husband’s problems at work, his emerging mental illness, etc.
The focus then turns to the date of separation and the period thereafter. This was clearly a dark period in their lives. The Husband’s mental health issues came to the fore, exacerbated by the circumstances of the separation.
The Husband’s conduct in this period is set out at length in the Wife’s Affidavit of 22 January 2016. The Court finds that his conduct can only be described as vile. It was family violence in every sense of that word, except in the sense of physical violence. It is clearly conduct falling within the definition found in s.4AB of the Act. Quite apart from the fact that the Court accepts almost all of the Wife’s evidence about the Husband’s behaviour in the post separation period, the fact is that the Husband made damning admissions in cross-examination. The Court records at this point in these reasons for judgment that the Husband was not an impressive witness. He was frequently unresponsive and was warned by the Court about the potential impact of this but he continued notwithstanding. He was flippant at times, hostile at other times. He appeared anxious at times and agitated at other times. He missed few opportunities to make gratuitous derogatory comments about the Wife, or what he perceives that she had done. He frequently came across as conveying a sense of self-entitlement and superiority. For a person who was formerly a (occupation omitted) for the (employer omitted), he demonstrated an extraordinary lack of insight about the impact on his own children of his actions. The Court will provide just a few examples but otherwise not labour the point.
At no point did he dispute the multiple Apprehended Violence Orders (hereafter referred to as ‘AVO’) against him or the criminal charges. He did not dispute the evidence that the Wife relied on in seeking the AVO’s. He did not deny, for example, that at 6:30 am on Tuesday 6 May he left a message on the Wife’s telephone answering machine in which he said:
Discuss footy with the boys, boys get that fucking leech out of my house, him and your fucking cunt of a mother.
He agreed that, at about the same time, he sent a text message to his son X in which he said:
Your mum is a fucking bitch having that cunt in my house. The greedy bitch moved out. Now the cunt is back with that leech in my house and with my boys. The self-centred greedy rag saved nothing. Spent everything and wants even more. She is a dead cunt.
He admitted to sending these messages. He agreed that he pleaded guilty to the relevant charges. He agreed that he breached the AVO four times.
He agreed that he sent those messages, not just to the Wife, but to his sons. He agrees that he sent a message as follows:
How are you going boys? I love yas. Pity you got to live with the greedy bitch and the parasite, all right? ... bitch and parasite, you can fuck off. All right, love yas boys. See yas later.
Another message was:
How are you going boys? I will see yas all tomorrow hey. Hope yas will stay. Um, hope mum goes and does whatever she fucking wants to because she can go and live in a tent. That’s all she fucking ever earned in her life. It’s only fair. ...
There are many similar messages.
The Husband was cross-examined about the Wife’s allegation in relation to his behaviour towards her during Court events in Wollongong. It is possible that the Wife is mistaken about some of these dates but the Court accepts her evidence and rejects the Husband’s denials about the threats that she says that he made to her, either in Court, or in the precincts of the Court.
To be very clear, the Court finds that where the evidence of the Husband and the Wife conflicts about his conduct in the post separation period, the Court prefers the Wife’s evidence. Where the Wife asserts that the Husband threatened to kill her and burn the house down, the Court accepts her evidence in preference to his denials.
It is interesting to observe that the Husband’s Counsel’s cross-examination of the Wife focused predominantly on her assertion of the impacts on her in the post separation period of the Husband’s conduct. She gave evidence about her increasing fear of the Husband, of her inability to sleep undisturbed and her preoccupation with matters relating to hers and the children’s safety. She gave evidence about the impact of this on her work and on her parenting. She became anxious about herself and the boys. She would check on the boys’ safety several times at night when they were asleep. She became hyper-vigilant about their safety. She started feeling physically unwell and anxious. It is plainly obvious to the Court that she not only continued in her role as primary parent for the three children but persisted in doing so notwithstanding the enormous strain that she suffered as a result of the Husband’s vile behaviour in this period.
The Court accepts, however, that there may be occasional instances in the Wife’s evidence where she overstated the fear that she felt of the Husband. Nonetheless, the present context must not be overlooked – the question for the Court is whether the Wife’s contribution in the post-separation period was rendered more arduous as a result of the Husband’s conduct. The answer is unequivocally yes and the assessment of this is not dependent on whether she exaggerated her fear of the Husband or not but rather on an objective assessment of how much harder it must have been for the Wife to parent in this period.
The Court focuses on non-superannuation assets first. The Husband’s initial contribution was significantly greater than that of the Wife. Without in any way minimising the Wife’s initial contribution, or the later contribution she made, the significance to both of them of the Husband’s initial contribution was that it represented a substantial foundation for their later wealth. As at the date of separation, therefore, the Husband’s contribution is assessed at 65 per cent. In the post-separation period, however, the Wife’s contribution as parent was rendered more arduous as a result of the Husband’s family violence. The Court finds that this requires an adjustment in her favour of 5 per cent. Contribution to the non-superannuation pool of assets is therefore assessed at 60 per cent in favour of the Husband and 40 per cent to the Wife.
The Court’s focus then turns to the superannuation assets. A number of matters are self-evident. There is an obvious disparity in the value of the parties’ superannuation interests. The Husband obviously made a greater initial contribution to the superannuation pool as a result of 10 years contribution before cohabitation. The Court believes that no Kennon adjustment should be made to the superannuation pool because it could not be said that the Wife’s contribution to the superannuation was rendered more arduous by the Husband’s conduct. Before assessing contribution, however, it is necessary to consider whether a distinction should be made between the superannuation assets, as contended for by the Husband.
One of the issues in this case that the Court has found difficult is to determine whether the assets should be treated as two pools, i.e. superannuation and non-superannuation assets as contended for on behalf of the Wife, or whether in fact there should be three pools as contended on behalf of the Husband, i.e. non-superannuation assets, the Husband’s superannuation relating to his invalidity benefit and finally the Husband’s superannuation relating to his retirement benefit.
The Court does not cavil with the proposition that there should at least be two pools: superannuation and non-superannuation. The question is whether there should be a further distinction having regard to the nature, form and characteristics of the Husband’s superannuation entitlement?
The argument on behalf of the Husband in this regard arises from Mr G’s report dated 24 October 2014. Whilst at paragraph 1.4 of his report, Mr G expresses the view that the value of the interest held by the Husband in the superannuation fund known as (omitted) Super in accordance with the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 is $1,108,483, in Mr G’s report attached to his Affidavit of 19 May 2016, the figure was updated as at 9 May 2016 to be $1,102,855. That is the figure that was presented as the joint value, at item 24 of the joint balance sheet being exhibit X.
Notwithstanding that, the Husband relied on the opinion expressed by Mr G at paragraphs 1.5 – 1.14 of his report, which is reproduced below:
1.5 In considering the above value, it may be appropriate to take into account the nature, form and characteristics of the superannuation interest which are discussed at section 2 below. In particular, the Husband was medically retired from the (omitted) and is in receipt of an invalidity (hurt on duty) pension from (omitted) Super. In my opinion the interest has two distinct components that I have referred to as the “invalidity benefit” and the ‘retirement benefit”.
1.6 The “invalidity benefit” is the pension paid prior to the member reaching the member’s retirement age. The “invalidity benefit” payment is intended to replace, in part or in full, the member’s income that they would have earned had they not been deemed incapacitated for their former employment duties. I note that the member may earn income from other sources without a reduction in their invalidity benefits.
1.7 The “retirement benefit” is that benefit payable from the member’s retirement. The normal retirement age is 60. On the assumption that the member had not been incapacitated, they could have commenced an early retirement benefit from age 55.
1.8 Given the member is currently less than age 55, they will have the opportunity to commute part of all of their pension to a lump sum at age 55. In the event they do no elect to commute part of their pension at age 55, the member will receive a second opportunity to commute part or all of their pension to a lump sum at age 60. The member cannot commute part of their pension at age 55 and commute a further part at age 60. That part of the pension that is not commuted will continued to be paid for the life of the member.
1.9 If the Husband does not have the capacity to earn an alternative source of income, it may be appropriate for the invalidity pension to be treated as earnings from employment. The pension payment is replacing the employment income that the Husband could have otherwise earned from the relevant date had the member had the capacity to undertake other gainful employment.
1.10 However, should the Husband be able to replace all of his (employer omitted) earnings with income from alternative employment or business related activities, it may be appropriate for the whole of the pension to be treated as superannuation. This is because the pension would be received in addition to the member’s other employment income. Under this scenario, care should be taken not to double count the value of the superannuation as an asset and the pension payments as a financial resource and to give consideration to any possibility that the member may be required to resume employment with the (employer omitted).
1.11 It is my opinion, the valuation set out at paragraph 1.4 is only relevant where the member has the capacity to fully replace the income formerly earned from (employer omitted) employment with other employment or business related activity and the possibility that the member may be required to resume employment with the (employer omitted) is remote or non-existent.
1.12 Where the member does not have the capacity to earn other income, I believe it is appropriate to only consider as superannuation the value of the “retirement benefits”, being the pension or lump sum alternatives available from the retirement age.
1.13 In considering the value of these alternative benefits to the Husband, as a guide I have set out below the value of the invalidity benefit (adopting the valuation method for a pension payable for a fixed term) and the retirement benefit assuming it is payable as either a pension or the whole of the pension is commute to a lump sum (using the method for valuing a benefit payable from former employment as the basis of valuation). I have provided alternative values assuming the retirement age is to be age 55 and alternatively age 60.
| Component | Reference | Value ($) at 3 November 2014 assuming retirement age of | |
| Age 55 | Age 60 | ||
| Retirement benefit: Payable as a pension only | Paragraph 3.3 and 3.4 | 783,470 | 591,881 |
| Retirement benefit: Commuted to a lump sum | Paragraph 3.3 and 3.4 | 553,203 | 427,187 |
| Invalidity benefit: Payable to “retirement age” | Paragraph 3.5 | 337,261 | 548,477 |
1.14 Should it be demonstrated that the Husband is able to undertake part time work, or may be able to undertake employment outside of the (employer omitted) at some point in the future, further consideration should be given to the weight and value to apply to the invalidity and retirement benefits of the member’s superannuation interest.
It is also important to reproduce footnote 1, which is referred to in paragraph 1.13:
The valuation methods adopted are based on those set out in FLSR as the scheme specific method and factors for valuing interests held in (omitted) Super do not contain appropriate methods for separately valuing the invalidity benefit and the retirement benefits. The addition of the invalidity and retirement benefit values will not reconcile exactly to the value set out at paragraph 1.4. This is due to the differing assumptions that have been adopted in determining the valuation factors for each of the valuation methods.
Mr Millar, Counsel for the Wife cross-examined Mr G about this part of his report. He agreed that these paragraphs express a series of opinions that he holds. He agreed that the phrases “retirement benefit” and “invalidity benefit” are phrases that he had chosen and are not reflected in the relevant legislation. In seeking to explain paragraph 1.9 of his report, particularly his opinion that “it may be appropriate for the invalidity pension to be treated as earnings from employment”, he was effectively giving the analogy that if the invalidity benefit is replacing income, consideration needs to be given as to whether that benefit should be considered as income, or a capitalised asset and thus care needed to be given not to double count the benefit as both an asset and as income, particularly during any period prior to retirement. He acknowledged that the relevant interest was presently in the payment phase, which was not just income but taxable income. He agreed with the characterisation of this income as a pension.
This series of questions was summarised in transcript at page 5 lines 4-10 inclusive:
Mr Millar:So the argument, if I can call it that, that you’re putting in 1.9, for example, is simply an opinion you proffer about treatment of that, isn’t it?
Mr G:Yes. What I’m trying to say there is that the court – I’m just trying to highlight that the court may wish to consider that differently, depending on whether the husband can earn other employment income and therefore, the benefit from his invalidity pension is being received in addition to normal wage and salary income, or whether his injuries are such that he’s unable to undertake any other gainful employment.
The Court accepts that what Mr G was trying to do was to make the Court aware of the nature, form and characteristics of the Husband’s superannuation interest.
Mr Millar then asked Mr G questions about the values attributed to these respective interests at paragraph 1.13 of his report. Mr G agreed that he used the word “guide” because there was no legislative foundation for the calculation, as the legislation does not define “retirement benefits” and “invalidity benefits”. Mr G explained that, notwithstanding, as he was considering the nature, form and characteristic of those benefits, he looked for comparable methods in order to be able to apply a value to these components on what he described as a “somewhat consistent basis” (transcript, page 6, line 7). He explained, for example, that with respect to the invalidity benefit, that being a payment between the valuation date and an assumed retirement date, he looked at that and compared that to a pension that may be payable for a fixed period of time and that methodology which he adopted is prescribed within the Family Law (Superannuation) Regulations 2001. He agreed, however, that the method of valuation he used is one of a number of methods he could have used. He maintained, however, that the method he used was the most appropriate in the circumstances, if the Court deemed it relevant to consider those components as separate benefits. He agreed with Mr Millar, however, that the valuation method that he used was a prescribed method of valuation for an interest as a whole and not the dissected interests that he promulgated.
This issue is summarised at transcript page 6 lines 43-47:
Mr Millar:‑ ‑ ‑ but there’s nothing in the legislation or regulations to provide for the valuation of the benefits as individual items, is there?
Mr G:Whilst there’s nothing specific in the regulations, I’m aware of other decisions by the court where it has considered the different components on a similar basis to what I’ve provided and I’ve provided those calculations in case it is of assistance in the court in this matter.
Mr G agreed that the cases that he was thinking of were cases in which he had given expert evidence, or he had provided the expert report.
Mr Millar then asked about the valuation methodology which is set out at 3.1-3.6 of Mr G’s report. He agreed that this part of his report explains the figures that are contained in the table at 1.13 (set out above). He was taken to paragraph 3.6 of his report, which states:
I note that it is not possible to exactly reconcile the value of the invalidity and retirement benefits noted above to the valuation of the whole superannuation fund interest in accordance with the scheme specific methods and factors. This is due to the different actuarial assumptions being adopted in determining the scheme specific methods and factors are likely to include an allowance for the probability of some the members commuting their pension entitlements to a lump sum. The values set out above assume that the member takes the whole of the retirement benefit as either a pension or a lump sum from their retirement age.
Mr Millar cross-examined Mr G about his opinion expressed at 3.6. This is found at transcript page 7, line 16 through to page 8 line 24:
Mr Millar:And when you get to 3.6, you see you note there correctly that you can’t reconcile precisely the value of the two separate benefits to the value of the interest as a whole. That’s effectively what you’re saying in the first sentence, isn’t it?
Mr G: Yes.
Mr Millar:And then you offer the suggestion that that’s due to different actuarial assumptions being adopted for each of the different methods. When you say “the different methods” do you mean there the method of valuing what you call the retirement benefit and the method of valuing the invalidity benefit or are you referring to something else?
Mr G:No. Effectively, it’s not possible to reconcile the total of the invalidity benefit and the retirement benefit to the whole of the superannuation interest.
Mr Millar:Yes. And you say this is due to the different actuarial assumptions being adopted for each of the different methods, but the different methods you’re referring to, am I correct to think that that’s the method of valuing the retirement benefit that you use and the method of valuing the invalidity benefit or are you talking about some other methods?
Mr G:No. Effectively, the method for valuing the interest as a whole, the method for valuing the retirement benefit as a pension only, the method for valuing the retirement benefit as a lump sum only and the method for valuing the invalidity benefit.
Mr Millar:Right. And each of those three, because there are three there ‑ ‑ ‑?
Mr G:There’s four. Sorry.
Mr Millar: Four. All right?
Mr G: Being the interest as a whole.
Mr Millar: Yes?
Mr G: The retirement benefit as a pension.
Mr Millar: Yes?
Mr G: The retirement benefit as a lump sum.
Mr Millar: Right?
Mr G: And the invalidity benefit.
Mr Millar:The lump sum. Right. And there would be different actuarial assumptions to make for the purpose of each of those valuation exercises, wouldn’t there?
Mr G: Yes.
Mr Millar:And you don’t actually know what they are, do you?
Mr G: I know what some of those assumptions are.
Mr Millar: Well, can I suggest ‑ ‑ ‑?
Mr G:I can’t say that I know what all of them are, but I understand the concepts that have been developed in determining those factors.
Mr Millar:If you look at the next sentence, it starts with the phrase “as an example”. You say the actuarial assumptions adopted in determining the scheme-specific methods and factors are likely to include, and when you say that, you’re necessarily – I’m not criticising you saying this, but necessarily, you’re speculating about that, aren’t you?
Mr G: Yes.
Mr Millar:Because you don’t – you can’t actually know, can you?
Mr G:Whilst I can’t be certain, from my understanding of the family law superannuation regulations and the other methods in there, I would assume that given some members would take a pension and some members would take a lump sum, that the actuarial factors adopted would assume a probability for members that could take a lump sum.
Mr Millar:Sure. But all I’m saying is you don’t know what those actuarial assumptions are, do you?
Mr G: That is correct. I’ve made an assumption that they do take that into account.
It is important to note that there was no evidence led by, or from the Husband about whether he would retire at age 55 or 60 and whether he would take any benefits as a pension only or commute to a lump sum and if so, at what age? Thus, not only does Mr G make an actuarial assumption but there is no evidence before the Court of the Husband’s intentions which could be used as a benchmark in assessing the potential validity of the assumption that Mr G made.
Mr G later confirmed that the Husband’s superannuation fund will not accept splitting orders expressed as a percentage but requires orders framed as a base amount. This is explained at transcript page 9, lines 12-37:
Mr Millar:Right. It’s the case, isn’t it, with this fund that while the court has power to make super-splitting orders expressed in percentage form, this fund doesn’t want orders of that kind?
Mr G:Correct. Also, for this particular type of benefit.
Mr Millar:Yes. For this type of benefit. And is it your understanding that the reason for that is because if the hurt on duty pension was being paid at the rate of 72.75 per cent, that the fund would have difficulty in – if a splitting order were made in addressing the problem created by subsequent increases in the percentage rate of pension being paid, if the husband were to be granted a pension at a higher rate?
Mr G:Yes. Whilst I’ve seen nothing in writing to confirm this, from my discussions with members of the family law team at (omitted) Super, I understand that the base amount is requested to avoid or reduce any potential concerns that the non-member spouse should be paid a part of that increased pension.
Mr Millar:Because that increased pension can be – just to take it as an example, say it was increased to 80 per cent. It’s just an arbitrary figure. It can be backdated, can’t it?
Mr G:Yes, it can.
Mr Millar:And if the splitting order has been made, specifying a base amount by the court and subsequently the member successfully claims a higher rate of pension and, if it’s backdated, that still can’t affect the entitlement that non-member spouses received, can it?
Mr G:That is the view of state super.
Mr Millar:Because the non-member spouse will have had the base amount and that’s the end of their entitlement, unaffected by anything the member subsequently can obtain?
Mr G:Yes.
The significance of this evidence, the Court notes, goes not to the issue of whether the Husband could succeed in applying for a higher rate of pension (which the Court has already dealt with above) but rather that a reasonable inference to be drawn is that the policy mandating base amounts is in at least part based on the potential for future changes in a member’s superannuation entitlement. The potential future changes in this case include, in theory, that a member regains his capacity to work, either in part or in whole. After all, the Husband in this case is only 50. There seem few issues about his physical health. One simply does not know whether the resolution of these proceedings, which might have exacerbated his psychiatric issues, could lead to an improvement in his mental health. The point the Court wishes to make is that it is unwise to make assumptions about the future, be they positive or negative in terms of the Husband’s earning capacity. And thus, perhaps, it is unwise to rely on assumptions about the future in making Orders which, under the Act, are intended as much as possible to finalise matters between parties once and for all time.
The concern that the Court has about Mr G’s methodology in calculating the figures set out at 1.13 of his report is that it is based on an assumption which, whilst safely made in the context of valuing an interest as a whole, may not necessarily be safely made when valuing components of a superannuation interest. In any event, the insuperable challenge confronted by the Court in seeking to, somehow, apply the figures contained at paragraph 1.13 is, firstly, that they cannot be reconciled to the value of $1,102,855 (i.e. the figures just do not add up) and, secondly, the Court has no evidence before it as to what the Husband’s intentions are about when, and in what manner, he would take his benefits.
The Court acknowledges that in other cases Courts have drawn the distinction between two elements of a spouse’s superannuation, in order to understand the nature of the interest. For example, in Schmidt & Schmidt [2009] FamCA 1386, a decision of His Honour Justice Watts, in another (omitted) hurt on duty case, his Honour drew the distinction between the Husband’s pre-retirement superannuation interest and his post-retirement superannuation interest. The former was the husband’s invalidity benefit, the latter his retirement benefit. At paragraphs 101-108 of Schmidt, his Honour states:
101.The husband currently receives an amount of $958.68 net per fortnight by way of income stream from his superannuation interest.
102.The reason he receives that fortnightly pension now (rather than at normal retirement age) is because he was hurt on duty.
103.I find that it is appropriate to assess contributions to pre-retirement superannuation interests separately.
104.Counsel for the husband argues that only 10 percent of the income stream should be seen as being contributed by the wife.
105.Between now and his retirement the amount of the husband’s current superannuation interest is not primarily based upon the amount of time that the husband was in the (omitted) pooled fund. It is based on:-
105.1The husband being hurt on duty;
105.2The circumstances in which the husband was hurt on duty;
105.3The amount of the husband’s salary at the time that he was hurt on duty.
106.In this case the amount of the husband’s salary has a significant connection to the amount of time the husband has been with the (omitted) service. It also has some connection with the fact that the husband was promoted to sergeant in 2003.
107.The husband was hurt when being exposed to a risk in the course of his employment to which members of the general work force would not normally be exposed. Consequently he receives a superannuation interest equivalent to 100 percent of his salary (s 10(1A)(c) PRSA).
108.The wife cannot claim any direct contribution arising from the husband being hurt on duty.
Mr Richards submits that the same distinction should be drawn in this case, with the invalidity benefit being treated in the same way as what Watts J described as the pre-retirement superannuation interest.
At paragraph 122 of Schmidt, Watts J states:
There is a distinction to be drawn between the contributions the wife has made towards the part of the husband’s superannuation interest that he receives because he was hurt on duty and the part of the superannuation interest that he will receive whether or not he had been hurt on duty.
Again, transposing that distinction to this case, Mr Richards submits that, because the contribution to the invalidity benefit must, of necessity, be treated in a way different to the contribution to the retirement benefit, these items should be in separate pools. Mr Richards emphasised that the hurt-on-duty benefit commenced after the date of separation, a factual similarity to Schmidt. The Court doubts, however, whether this factor itself is significant because, on the Husband’s own evidence in this case, the psychological and psychiatric injury that he suffered during the course of his work happened during the course of the relationship and, to that extent, it cannot be said that the hurt-on-duty benefit accrued after separation, even if the benefit, in a technical sense, commenced from that time. Indeed, in cross-examination about the Husband’s anger, something about which he deposes to in paragraph 127 of his Affidavit sworn 22 January 2016, he agreed that his anger issues predated the separation. Indeed, it was put to him that the evidence that he gave about his anger extended not just to the period “just before date of separation” but “indeed some years before that”. The Husband agreed and then made this rather insightful, if not somewhat gratuitous comment, “The cops made me mad, and someone wants to keep me there.” Thus, even Mr Richards’ own client might not agree with the subtle distinction sought to be drawn about the hurt-on-duty benefit commencing after the date of separation. The Husband’s own comment also demonstrates the artificiality of some of the distinctions that are often sought to be drawn in these cases. Thus, for example, even if the analysis by Watts J at [105] of Schmidt was correct, and it could be argued that the Husband’s invalidity benefit was not primarily based on a period of membership, but rather on the fact that he was hurt-on-duty, the circumstances in which he was hurt-on-duty, and the amount of the Husband’s salary at the time he was hurt-on-duty, it is nonetheless a legalistic way to assess contribution to the benefit in question.
On the facts of this case, the Husband was hurt-on-duty, but the period of duty pre-dated the separation by several years. He agreed that the highly traumatic events to which he was exposed in the course of his duty occurred well before separation. The Husband’s own evidence is that he coped with the stress by going to the pub often, drinking much, playing golf, and going fishing or diving. The reasonable inference to be drawn and the finding the Court in fact makes, is that when he was not home, the Wife had to bear an added responsibility for parenting and homemaking duties. Turning now to the circumstances in which the Husband was hurt-on-duty, the Court is prepared to accept (in a lay sense only) that he was exposed to risks in the course of his work which members of the general workforce were not normally exposed. Does that mean, ipso facto, that the Wife did not bear some of the consequences of this herself? One may well ask why the spouses of (omitted) receive reversionary benefits if, on the analysis of cases such as Schmidt, they made no contribution at all? The third component referred to in Schmidt is the amount of the Husband’s salary at the time he was hurt-on-duty. It is unquestionable that the Wife contributed to this.
It seems to this Court that even putting aside the difficulties inherent in adopting Mr G’s valuations of the retirement benefit and invalidity benefit, that a legalistic and technical approach to the assessment of the Wife’s contribution to the Husband’s hurt-on-duty pension has the potential to distract the Court from its fundamental task under s.79(2) to make an order that is, in all the circumstances, just and equitable. Indeed, this Court is strongly of the view that to draw the distinction submitted on behalf of the Husband between retirement benefit and invalidity benefit is, on the facts of this case, not just and equitable. Moreover, when the Court considers s.79(4), and the very broad ranges of contribution that are expressed in that subsection, the legalistic approach contended for on behalf of the Husband is unacceptable.
Thus, whilst the Court accepts that the Husband’s superannuation of $1,102,855 should be treated in a separate pool to the non-superannuation assets, the Court declines to make a distinction between retirement benefit and invalidity benefit. A just and equitable order must still be made, but that exercise must take into account all of the very diverse contributions made by both the Husband and the Wife.
Doing the best the Court can, therefore, it assesses the Husband’s contribution to the superannuation pool to be 70 per cent.
An Adjustment Under Section 75(2)?
It was interesting for the Court to note that two experienced family law Counsel made submissions about a s.75(2) adjustment in favour of the Wife which was not all that inconsistent with each other. Mr Millar for the Wife submitted that there should be a 7.5 per cent adjustment in her favour on the non-superannuation pool and 5 per cent on the superannuation pool. Mr Richards on behalf of the Husband submitted that any adjustment in the Wife’s favour would be between 5 and 10 per cent, but not in relation to what he described as the invalidity benefit component of the Husband’s superannuation. The Court recognises that these submissions were predicated on the Court’s acceptance of each Counsel’s submission about contribution. As it turns out, the Court has not accepted either Counsel’s submission about contribution, having formed its own assessment.
What is striking is that the Husband, quite properly it must be acknowledged, conceded that there would be some s.75(2) adjustment in the Wife’s favour to reflect the fact that the children will be in the care of the Wife and the only provision that he would provide is child support. The concession about the adjustment in her favour also reflected the reality that, even on a (omitted) pension, he was earning more than she was. It must also recognise the fact that, in all likelihood, he will have a pension for life, albeit, one the quantum of which will decline post-splitting order. She will be left to the uncertainties of employment in the workforce. Despite all the hardships that the Husband has experienced and will in all likelihood continue to experience and despite his uncertain mental health, the reality is that his (omitted) pension will ensure with almost certainty that he will continue to be in a sound and secure financial position compared to the Wife. The prospects of the Wife improving her financial condition will depend on her being able to return to work full-time, a matter that is far from certain. It will depend, to some extent, on the children becoming totally independent of her. It will depend, to some extent, on her re-partnering. In this regard, her relationship with Mr W is an unknown. The Court finds that it is probably a closer relationship than she was prepared to concede to the Court but that, in any event, it is not yet a relationship that involves the commingling of finances, or unrestricted financial support. The Court can go no further in making findings in this regard.
An adjustment is called for, having regard to all the evidence, in her favour. Doing the most the court can do with the evidence available, the court assesses the s.75(2) adjustment in the Wife’s favour to be 7.5 per cent on the non-superannuation pool and 5 per cent on the superannuation pool.
This means that in the superannuation pool, contribution is assessed as to 65 per cent in favour of the Husband and 35 per cent to the Wife and in relation to the non-superannuation pool, contribution is assessed as to 52.5 per cent in favour of the Husband and 47.5 per cent to the Wife.
Just and Equitable Orders?
A further issue arises from the Wife’s claim to an adjustment in her favour of $35,758.50, representing arrears arising from the Husband’s failure to keep up the repayments in respect of the parties’ mortgage loans, rates, taxes, and insurance payments, as set out in Order 7 made by His Honour Judge Monahan on 27 November 2014 and monies withdrawn by the Husband from the mortgage loan account.
It is important to recognise that, in the Husband’s evidence, he did not cavil with the fundamental proposition that he failed to comply with the order made by Judge Monahan. He said, however, that he did not have the money with which to comply with the order. In reality, the Court finds his refusal to comply with the order was nothing more than a petulant protest in relation to an order he did not like. At all relevant times, he had access to funds that could have been used to comply with the Order.
The evidence in the Wife’s case about the quantification of her claim is contained in an Affidavit of Mr I, sworn 14 February 2015. Mr I is a forensic accountant, retained by the Wife for the specific issue of quantifying the loss caused by the Husband’s actions. Mr I was not required for cross-examination. His brief was to review both mortgage accounts and determine the effect of the failure to maintain mortgage payments on each account along with the effect of the withdrawal of $47,312.15 as a lump sum. There is no contention about the factual matters that was the subject of Mr I’s analysis. He concluded that the combined financial effect of the Husband discontinuing the repayments on the mortgage loan and then withdrawing $47,312.15 was to increase the mortgage payout on 4 May 2015 by $71,517.72. The amount the Wife claims is half of this amount. The Husband’s cavalier approach to this issue contributes to the finding against him. The Wife is entitled to the order that she seeks.
The superannuation pool in this matter totals $1,131,097. The Husband’s 65 per cent share amounts to $735,213.05. His total superannuation held amounts to $1,115,602, so the adjustment in the Wife’s favour will need to be the difference between these two figures, i.e. $380,389. In the Husband’s Minute of Order, he contemplates a splitting order from his interest in the (omitted) Superannuation Scheme. The base amount in this regard will be $380,389.
The non-superannuation pool in this matter totals $573,862. The Husband’s 52.5 per cent share of this amounts to $301,277.55. He presently has assets in his control amounting to $64,020.00. The difference between these two figures is $237,257.55, which represents his share of the joint funds, being the sale proceeds of Property O1.
The Wife’s 47.5 per cent share of the aforementioned pool is $272,584.45. She has assets in her control totalling $63,005. The difference is $209,576.45, which represents her share of the joint funds held.
A further adjustment needs to be made in the Wife’s favour of $35,758.50, out of the Husband’s share. Thus, he gets from the sale proceeds $201,499.05 and she gets $245,337.95.
The Orders will reflect the Court’s findings.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 5 September 2016
Schedule One
Applicant Wife’s proposed Minute of Order
That the monies held by the solicitors for the Husband in their controlled monies account be divided as to 57.5% to the Wife and the balance to the Husband.
That out of his share of the proceeds referred to in Order 1 above the Husband pay to the Wife, simultaneously with receiving his share of settlement monies, the amount of $35,758.50 representing arrears arising from the Husband's failure to keep up the repayments in respect of the parties' mortgage loans, rates, taxes and insurance payments as set out in order 7 of the Orders dated 27 November 2014 and monies withdrawn by the Husband from the mortgage loan account.
That the Wife be the sole owner of her Mitsubishi (omitted) motor vehicle registration number (omitted).
That the Husband be the sole owner of his Holden Astra motor vehicle.
That a base amount of $560,902.00 is allocated, as required by s.90MT (4) of the Family Law Act 1975, to Ms Jarvis out of Mr Seymour's (member number (omitted)) interest in the (omitted) Superannuation Scheme.
That in accordance with paragraph 90MT (1) (a) of the Family Law Act 1975:
6.1.Ms Jarvis is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
6.2.Mr Seymour's entitlement to payments out of their interest in the (omitted) Superannuation Scheme and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this order.
That Trustee of the (omitted) Superannuation Scheme ("the Trustee") shall do all such acts and things and sign all such documents as may be necessary to:
7.1.Calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for Ms Jarvis by clause 5 of this order; and
7.2.Pay the entitlement whenever the Trustee makes a splittable payment out of Mr Seymour's interest in the (omitted) Superannuation Scheme.
That these orders have effect from the operative time and the operative time for this order is two (2) weeks from the date when these Orders are served upon the Trustee.
That this order binds the Trustee of the (omitted) Superannuation Scheme.
10. That the Husband and Wife have the sole right, title and interest in:
10.1.Any chattels, goods, furnishings and other property which are, at the date hereof, in their possession respectively.
10.2.Any moneys, shares, debentures which stand in their sole name respectively at the date hereof.
Schedule Two
Respondent Husband’s proposed Minute of Order
That the monies held by the solicitors for the Husband in their controlled monies account be divided as $120,000 to the Wife and the balance to the Husband.
That out of her share of the proceeds referred to in Order 1 above the Wife pay to the Husband, $1,779 representing arrears her share of the Cutcher and Neil reports.
That the Wife be the sole owner of her Mitsubishi (omitted) motor vehicle registration number (omitted).
That a base amount of $165,428 is allocated, as required by s.90MT (4) of the Family Law Act 1975, to Ms Jarvis out of Mr Seymour's (member number (omitted)) interest in the (omitted) Superannuation Scheme.
That in accordance with paragraph 90MT (1) (a) of the Family Law Act 1975:
5.1.Ms Jarvis is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
5.2.Mr Seymour's entitlement to payments out of their interest in the (omitted) Superannuation Scheme and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this order.
That Trustee of the (omitted) Superannuation Scheme ("the Trustee") shall do all such acts and things and sign all such documents as may be necessary to:
6.1.Calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for Ms Jarvis by clause 5 of this order; and
6.2.Pay the entitlement whenever the Trustee makes a splittable payment out of Mr Seymour's interest in the (omitted) Superannuation Scheme.
That these orders have effect from the operative time and the operative time for this order is two (2) weeks from the date when these Orders are served upon the Trustee.
That this order binds the Trustee of the (omitted) Superannuation Scheme.
That the Husband and Wife have the sole right, title and interest in:
9.1.Any chattels, goods, furnishings and other property which are, at the date hereof, in their possession respectively.
9.2.Any moneys, shares, debentures which stand in their sole name respectively at the date hereof.
10. That the wife pay the husband’s costs of and incidental to these proceedings
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Remedies
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Jurisdiction
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Statutory Construction
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Injunction
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