Phipson & Phipson - [2009] FamCAFC 28

FAMILY COURT OF AUSTRALIA

PHIPSON & PHIPSON

[2009] FamCAFC 28

FAMILY LAW - APPEAL – From decision of Family Court judge – Property settlement – s 75(2) factors – whether reasonable exercise of discretion – whether adequate reasons given for s 75(2) adjustment – appeal allowed – re‑exercise of discretion

Family Law Act 1975 (Cth), s 75(2), s 79

Bennett and Bennett (1991) FLC 92-191
House v R (1936) 55 CLR 499
Mallet v Mallet (1984) 156 CLR 605
Norbis v Norbis (1986) 161 CLR 513
Russell v Russell (1999) FLC 92-877

APPELLANT:

Mr Phipson

RESPONDENT:

Mrs Phipson

FILE NUMBER:

PTW

3678

2007

APPEAL NUMBER:

2008

DATE DELIVERED:

4 March 2009

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Perth

JUDGMENT OF:

Finn, Thackray and Crisford JJ

HEARING DATE:

14 October 2008

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

28 March 2008

LOWER COURT MNC:

[2008] FCWA 38

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr M Supljeglav

SOLICITOR FOR THE APPELLANT:

DS Family Law

COUNSEL FOR THE RESPONDENT:

Mr G Giudice

SOLICITOR FOR THE RESPONDENT:

George Giudice Law Chambers

Orders

That the appeal be allowed.
That paragraph 1 of the orders made on 5 May 2008 be discharged.
That within 28 days of the making of these orders the wife shall pay to the husband the sum of $1,028 (and shall reimburse any amount paid by the husband pursuant to paragraph 1 of the orders of 5 May 2008).
That paragraph 5 of the orders of 5 May 2008 be varied by deleting all words prior to the words “the wife”.
That paragraph 13 of the orders made on 5 May 2008 be varied by substituting the sum of $148,400 for the sum of $171,250.
That in the event either party seeks an order for costs in relation to the appeal, they file and serve written submissions in support of such application within fourteen (14) days of the making of these orders.
That the respondent to any application for costs file and serve any written submissions in response thereto within fourteen (14) days of service of the applicant’s submissions.
That the applicant file and serve any submissions in reply within seven (7) days of service of the respondent’s submissions.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 16 of 2008
File Number: PTW 3678 of 2007

Mr Phipson

Appellant

And

Mrs Phipson

Respondent

REASONS FOR JUDGMENT

This is an appeal by the husband against orders made by Crooks J on 5 May 2008 in property proceedings between the husband and the wife.
The parties agreed their assets were worth $945,614 and their respective contributions to those assets were equal. The trial Judge determined both the superannuation and the non-superannuation assets be divided as to 62% to the wife and 38% to the husband. This division was arrived at on the basis of adjustments of 12% in favour of the wife on account of the matters contained in s 75(2) of the Family Law Act 1975 (“the Act”).
The only challenge relates to his Honour’s assessment of the s 75(2) factors. The husband considers that the adjustment to the wife should have been 5%.

Brief Background

There was no challenge to the findings of fact of the trial Judge. Given the very narrow scope of the appeal it is unnecessary to set out the full factual background.
At the time of judgment the husband was 53 and the wife 57 years of age. He was working as a [professional] and she as an [employee].
They have two adult children. The husband has re-partnered.
They started living together in about 1978 and married in November 1984. They separated in August 2005.
The agreed value of the assets at the time of trial was $945,614. This included both superannuation and non-superannuation assets. The value of the non-superannuation assets was $619,183 and the value of the superannuation assets was $326,431. The husband’s superannuation entitlements were worth $295,294 and the wife’s entitlements were worth $31,137.

The Trial Judge’s Reasons

Having recorded the background facts, the evidence relied upon at trial, the competing claims of the parties, the agreed list of assets and liabilities and the parties’ agreement on the assessment of contributions, his Honour turned to consider what he described as “Section 75(2) and other factors”.
His Honour noted, correctly in our view, that some of the s 75(2) factors did not require consideration and others were not relevant. Others he addressed, but discounted.
In relation to s 75(2)(a), his Honour noted the ages of the husband and wife and said:
… I am satisfied that the husband has no health problems which might prevent or impact on him continuing his career in the future as a [professional]. … I am satisfied that whilst the wife has ongoing health problems for which she will need further treatment, these problems should not prevent her from continuing to work as an [employee] in the future.
In dealing with s 75(2)(b) his Honour drew attention to the disparity between the incomes of each of the parties. Given the submissions made on behalf of the wife concerning the weight placed on this factor, we consider it appropriate to repeat in full what his Honour said:
21. The wife is employed as an [employee] for the [government] for which she earns a gross annual income of approximately $34,000. The husband is employed as a [professional] and has worked for his current employer for more than 20 years. He currently earns a gross annual income of approximately $72,000. I am satisfied that both parties have the capacity for continued gainful employment, however, the husband is able to earn a significantly greater income than the wife for the remainder of his working life even after tax is considered. I find that the wife is exercising her capacity for gainful employment to the fullest. Given the wife’s age and health problems, I am satisfied that she is unlikely to retrain and increase her earning capacity nor could she reasonably take on more work than she is doing at present. The annual gross income of the husband is more than double the gross income received by the wife.
In dealing with s 75(2)(d), his Honour set out the support each party had provided to the adult children, but concluded:
… Given the ages of the children and their current circumstances, I do not intend to give any weight to the financial assistance either party may choose to provide for their children.
His Honour also considered under this sub-paragraph the wife’s assertion that her home needed significant maintenance, but concluded (for reasons not challenged) that he would not take the estimated costs into account.
When dealing with s 75(2)(f), his Honour said:
… I do, however, take into account that by reason of the difference in the income earning capacities of the parties which will continue into the future and the husband being about four years younger than the wife, that the value of his superannuation should increase at a significantly greater rate than the superannuation entitlements of the wife.
He noted, in dealing with s 75(2)(m), that the husband’s present relationship enabled him to share some household expenses which is a benefit the wife does not have. He accepted that “this benefit alone does not put the husband in a significantly stronger position than the wife”.
Having completed his consideration of the s 75(2) factors, his Honour announced his decision under a heading “Conclusion”. Given the challenge made concerning the adequacy of his Honour’s reasons, we set out in full what his Honour said:
35. I am satisfied an adjustment of 12% is called for after considering the s 75(2) and other factors. In reaching this decision, I have taken into account in particular, the significant difference in the income earning capacities of the parties which will continue for the remainder of the parties’ working lives and will affect the parties’ future superannuation entitlements.
Under a heading “Just and equitable”, his Honour recorded the effect of his decision as follows:
36. The effect of my decision on contributions and the other factors is that the wife shall be entitled to 62% of the non-superannuation assets or $383,893 and 62% of the superannuation assets or $202,387. The husband shall receive 38% of the non-superannuation assets or $235,290 and 38% of the superannuation assets or $124,044.
37. On the basis of the wife retaining her existing superannuation entitlements of $31,137, a splitting order using a base amount of $171,250 is required to achieve the proposed division.
Having recorded his satisfaction that the proposed outcome was just and equitable, his Honour recorded (in table form) the distribution of assets and liabilities required to give effect to the orders he proposed, which included not only the superannuation splitting order but also an order that the husband pay the wife $42,314.
The wife was to retain the home in which she was living, worth $325,000, free of encumbrance. She retained other assets of modest value and a small debt (net $16,579), as well as superannuation with a value of $202,387. In addition, she was to receive the payment of $42,314 from the husband to bring about the proposed division of assets. In total, the wife would receive $586,280.
The husband retained an investment unit worth $380,000, subject to a mortgage of $108,000. He also retained assets of minor value and some small debts (net $5,604), as well as superannuation with a value of $124,044. He was required, of course, to find $42,314 in order to make the balancing payment to the wife. In total, the husband would receive $359,334.

The grounds of appeal

The appellant’s application to amend the grounds of appeal was not opposed. The grounds, as amended, comprised the following:
(1)The decision of the The Learned Trial Judge, which resulted in an adjustment of 12% in favour of the wife pursuant to Section 75(2)(b) failed to take into account relevant considerations and such adjustment fell outside the reasonable exercise of discretion in that:
a)   The Learned Trial Judge attached excessive weight to Section 75(2)(b) in assessing and comparing the income, property and financial resources of each of the parties;
b)     The Learned Trial Judge failed to consider the real impact of such adjustment, in monetary terms, on the parties’ respective financial positions post settlement, and, in particular, the husband’s ability to meet future mortgage repayments on the Como property and to borrow additional sums to make payment to the wife pursuant to paragraph 1 of His Honour’s Orders;
c)     The decision could not, reasonably, be said to follow The Learned Trial Judge’s findings that the husband earned a gross annual income of approximately $72,000 whereas the wife had an earning capacity of approximately $34,000; and particularly where neither party had an obligation to support any other person.
d)     The Learned Trial Judge failed to consider or did not adequately consider, whether the decision was, in all the circumstances, just and equitable;
e)     The Learned Trial Judge failed to give any reasons, or any adequate reasons as to why he determined (given his findings in respect of each of the parties’ incomes), that a 12% adjustment was appropriate in all the circumstances.
f)   Having expressly held that the order for payment by the husband of the sum of $42,314 was a matter that went to the justice and equity of the decision, The Learned Trial Judge failed to give any, or adequate reasons, as to why it was appropriate that the wife be awarded 62% of both the superannuation [and] the non-superannuation assets, rather than having her full entitlements met exclusively by a superannuation splitting order.
In the course of argument, it became apparent there were in reality two grounds relied upon by the husband’s counsel, namely that his Honour erred in that:
a)in giving excessive weight to s 75(2)(b) he failed to consider the real impact of the orders he made; and
b)he failed to give adequate and cogent reasons for his decision.

The applicable law

An appellate court has limited power to interfere with a discretionary judgment. The principles have been authoritatively stated in numerous cases. Dixon, Evatt and McTiernan JJ, in House v R (1936) 55 CLR 499 at pp 504-505 said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Likewise the principles governing appeals against the weight to be accorded to particular factors, here the ones set out in s 75(2) of the Act, are not in doubt. They do not require extensive restatement. In Norbis v Norbis (1986) 161 CLR 513 Brennan J said, at pp 539-540:
The difficulties in the way of developing guidelines beset an appellate review of the exercise of a discretion under s. 79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite [[1948] 1 All ER 343 at p 345], Asquith L.J. stated the rationale of an appellate court’s approach:
“It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
The law requiring trial judges to give adequate reasons is also well settled: Bennett and Bennett (1991) FLC 92-191. The adequacy of the reasons will depend on the circumstances of each case. Generally, reasons are inadequate if the appeal court is unable to ascertain the reasoning upon which the decision is based or justice is not seen to be done. If the trial judge does not sufficiently disclose the reasoning behind a decision, the appeal Court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
We will be guided by these statements of principle in the determination of the appeal in this case.

Discussion

It will be convenient to consider first the adequacy of the trial Judge’s reasons for the s 75(2) adjustment, before turning to the complaint concerning the exercise of the discretion.
Trial judges are required to consider and discuss only those s 75(2) factors matters that could arguably be relevant. So much is apparent from consideration of s 79(4)(e) – and see also Collins & Collins (1990) FLC 92-149 at 78,043–6 and Clauson and Clauson (1995) FLC 92-595 at 81,911. In this matter the trial Judge discussed each of the s 75(2) factors that could reasonably be considered relevant. He explained why he considered some should not have any impact. In other instances, he drew attention to the difference between the positions of the husband and the wife. No complaint is made concerning anything said by the trial Judge in his discussion of these matters.
Having discussed all of the relevant s 75(2) factors, his Honour indicated the adjustment he proposed to make and then went on to explain the one factor he had “taken into account in particular”. That factor was identified as being the “significant difference” in the parties’ earning capacities, which his Honour noted would continue for the remainder of their working lives and would affect their future superannuation entitlements. In drawing particular attention to these matters it is apparent his Honour placed most weight on the factors identified in s 75(2)(b) and s 75(2)(f).
In our view, his Honour’s reasons for coming to his decision, although brief, are adequate since it is possible to discern the reasoning upon which the decision was based. It is true his Honour did not explain why reliance on the matters identified justified an adjustment of 12% rather than some other figure. However, as the Full Court has said in Pastern & Pastern [2007] FamCA 620 at [99]:
It is in the nature of a discretionary determination that there is necessarily a gap between identifying and considering relevant factors, and expressing a conclusion as to the cumulative effect of those factors. No matter how detailed the reasons provided by the trial Judge might have been, a point would necessarily have been reached where his Honour moved from a qualitative discussion of those factors to a quantitative reflection of them in the form of a s 75(2) adjustment.
In Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234], Coleman J discussed the move from “qualitative evaluation” to “quantitative reflection of such evaluation”, albeit in the context of assessment of contributions. In doing so, his Honour observed “there will inevitably be a ‘leap’ from words to figures”. This is, as Coleman J noted, the very nature of the exercise of discretion. (See also the observations of Finn J in Farmer & Bramley (2000) FLC 93-060 at [49] and the discussion of those observations by Nicholson CJ and Buckley J in Figgins & Figgins (2002) FLC 93-122 at [74]-[75].)
In our view, the only possible basis for complaint concerning the adequacy of the trial Judge’s reasons relates to his statement (at paragraph 35) that he had arrived at the 12% adjustment “after considering the s 75(2) and other factors” (emphasis added). We accept the submission of counsel for the husband that his Honour did not explain what “other factors” he had taken into account in arriving at the adjustment.
Ultimately, however, we consider nothing turns on what we regard as no more than a slight looseness of expression. His Honour’s reference to “the s 75(2) and other factors” needs to be considered in the context that his discussion of s 75(2) was preceded by a heading “Section 75(2) and other factors” (emphasis added). There was no mention under that heading of any “other factors”, apart from those identified in s 75(2). There is accordingly no reason to consider that his Honour took into account any “other matters” than those specifically discussed.

There are, of course, “other factors” of potential relevance in the adjustment of property interests, apart from contributions and the s 75(2) factors. These are the matters referred to in ss 79(4)(d), (f) and (g). It is common for those “other factors” to be considered by trial judges alongside the s 75(2) factors, which are themselves made relevant by s 79(4)(e); however, there was no suggestion that any of those “other factors” could be relevant in these proceedings.
Having found no merit in the complaint concerning adequacy of reasons, we turn now to consider the complaint that his Honour’s discretion miscarried. It will be recalled that it was submitted that this was a consequence of his Honour having given excessive weight to s 75(2)(b) and failing to consider the real impact of the orders he made.
We accept that it is necessary for the Court to consider the “real impact” of the proposed orders when determining property disputes. This point was emphasised in Russell v Russell (1999) FLC 92-877 where the following was said by the Full Court (at p 86,439):
… it must be remembered … that under s 79(2) of the Act, the Court is required to be satisfied that it is the order to be made which is just and equitable, not just the underlying percentage division of the net value of the parties’ assets. Indeed we take the opportunity to emphasise that in what his Honour has termed “the fourth stage”, that is, the consideration of whether the result is just and equitable, it is the justice and equity of the actual orders not of the percentage distribution which must be considered.
To similar effect, the Full Court in Clauson (supra) said at 81,911:
There is, we think, at times a tendency to assess s. 75(2) factors in percentage terms without considering its real impact, and we think there is legitimacy in the views expressed in more recent times that the Court has tended to operate in this area within artificially delineated boundaries. That is, it appears almost to be inevitable that the s. 75(2) factors will be assessed in a range between 10% and 20%. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue.
It is always important to keep in mind that an adjustment of X% for s 75(2) factors leads to a disparity in the value of property received by the parties representing 2 x X%. It is that disparity, measured in “money terms”, that requires consideration in determining whether the result is just and equitable: see Campbell v Kuskey (1998) FLC 92-795 at 84,928. In the present matter, the 12% adjustment led to a disparity in favour of the wife equivalent in value to 24% of the assets, or in “money terms” an amount of $226,947 out of a total asset pool of $945,614.
We accept that his Honour set out the effect of his orders in paragraphs 36 and 37 of his reasons (when considering the s 75(2) adjustment) and in the table showing the distribution of assets and liabilities (when considering the justice and equity of the orders). His Honour did not, however, expressly record the cumulative effect of his orders, electing instead to record the amounts each party would receive from superannuation and non- superannuation assets respectively. Whilst it would, in our view, have been desirable for his Honour to have recorded in dollar terms the total impact of the proposed s 75(2) adjustment, we do not consider his failure to do so constitutes appellable error.
We do consider, however, that in making what has been called the “leap” from “qualitative evaluation” to “quantitative reflection” of that evaluation, his Honour arrived at an adjustment for s 75(2) factors that was outside the reasonable range of discretion.
The outcome needs to be considered in the context of the parties having had a long marriage and now having no dependent children. Each of them is gainfully employed. Although the husband has a superior earning capacity to the wife and is four years younger than her, his income earning capacity is by no means exceptional.
His Honour did, during the course of the hearing, give some consideration to the impact over time of the difference in the parties’ earning capacities as the following extract from the transcript demonstrates:
HIS HONOUR:         If you look at the disparity in the earnings.
DUNLOP, MR:         Yes.
HIS HONOUR:         And then take account in some way of the difference in ages, three or four years.
DUNLOP, MR:         Yes.
HIS HONOUR:         Then over the period of the working lives of these parties, then – and I’m not suggesting that this is the way to approach it and certainly your client over the next 12 years or thereabouts is going to earn a very large amount of money more than Mrs [Phipson] in the normal course and as I stress that that is not necessarily the simple way of approaching that and say that if you look at gross figures that Mr [Phipson] may earn over the next 12 years, $500,000 more than Mrs [Phipson].
If you look at the impact of the earning capacities and I haven’t done the precise figures and I’ve just taken general statements but it’s a significant difference and I think that’s the real concern in this case. How do you make provision for that? I know there are all the uncertainties that you have mentioned and have come out in the evidence but I don’t treat that as something not deserving serious consideration, that difference in the earning capacities. You client has re-partnered and whilst there is no sharing of incomes, if you like, with his new partner, he does get benefits of course in terms of sharing living costs and like with his de facto partner. He is in a stronger position and there can’t be any question of that.
As will be seen, his Honour postulated in this passage a figure that might represent the future disparity in the parties’ gross earnings, but stressed that such an approach was not necessarily the appropriate one. However, he did not in his reasons indicate what approach he did in fact adopt in dealing with the disparity. Certainly, it would in our view be an error in the exercise of discretion if the difference in gross incomes was taken into account in the assessment process.
We have earlier set out paragraph 21 of his Honour’s reasons in which he noted that the wife’s gross income was approximately $34,000 and the husband’s gross income was approximately $72,000. He went on to note that the “husband is able to earn a significantly greater income than the wife for the remainder of his working life even after tax is considered” but he did not record any finding about the extent of the tax each party would pay on their gross income. Instead at the conclusion of paragraph 21, his Honour again makes reference to the gross income of the parties when he noted that the husband’s annual gross income was more than double that of the wife.
The disparity in the parties’ respective gross annual incomes, as found by his Honour, is $38,000. The wife’s counsel did not take issue with the assertion that once tax was taken into account, the disparity was reduced to about $26,000 per annum (although our examination of the respective statements of financial circumstances suggests it was a little over $27,000). Such a discrepancy may justify some adjustment (and indeed the husband conceded that it did). However, it is important to recognise that while s 75(2) factors are fundamentally prospective in nature they are not a means to seek to achieve equality between the parties: Mallet v Mallet (1984) FLC 91-507 at 79,127 per Wilson J.
The differential in the capital received by the parties in the present matter was not far short of a quarter of a million dollars. The factor his Honour said he particularly took into account in arriving at that outcome was the disparity in income earning capacities and the associated impact on future superannuation entitlements. His Honour did not quantify the impact on the superannuation entitlements, although he did say that the value of the husband’s superannuation “should increase at a significantly greater rate than the superannuation entitlements of the wife”.
Reference to the husband’s statement of financial circumstances reveals that he has salaried employment and his superannuation entitlements are held in “accumulation” funds. We were not referred to any evidence that would suggest the value of those entitlements would increase at any greater rate than the wife’s entitlements. The inference we therefore draw is that his Honour assumed the husband’s entitlements would increase at a greater rate than the wife’s because his employer would be required to make greater superannuation contributions commensurate with his greater income. In our view, that was a proper assumption to make. However, when notice is taken of the current superannuation guarantee levy (9% of gross income), the difference in contributions into the parties’ respective funds would amount to only a few thousand dollars per annum.
This relatively modest difference in annual contributions into the parties’ superannuation funds would then need to be considered alongside the disparity in net incomes of the parties (i.e. approximately $27,000 per annum) in order to determine whether or not his Honour erred in arriving at a result whereby the wife received $226,946 more than the husband out of a pool worth only $945,614.
Although counsel for the wife submitted that the opening sentence of paragraph 35 indicated that his Honour had also taken other factors into account (which he suggested were the differences in the parties’ ages, training, skills and health) we do not discern from his Honour’s judgment that he considered those matters to be of any real significance, save that he did draw attention to the fact the husband was four years younger than the wife when he was considering the parties’ entitlement to superannuation.
In our view, the differences in the parties’ net incomes and the associated impact on their future superannuation entitlements, even when considered with the differences in their ages, could not justify a s 75(2) adjustment of 12%. The adjustment was outside the reasonable range of discretion and the appeal will therefore be allowed.
We should also observe that we consider it was incumbent upon the trial Judge to have regard to the fact that whatever additional portion of the non-superannuation assets the wife received on account of s 75(2) factors would be immediately available to her to invest. This would lessen to some extent the difference in the parties’ incomes. The fact that the wife might prefer instead to retain her unencumbered property is not the point – she has the option to liquidate assets in order to generate income. There is no indication that his Honour gave consideration to this issue.

Re-exercise of the discretion

The husband by his Notice of Appeal proposed that the Full Court re-exercise his Honour’s discretion and we do not understand the wife to oppose that course of action. We consider it appropriate to do so, given the absence of any challenge to the factual findings made by his Honour.
Counsel for the husband submitted that an adjustment of 5% on account of the s 75(2) factors would be appropriate. In dollar terms this would amount to $47,280 but would result in a disparity between the parties of $94,560.
Given the disparity in the parties’ net incomes is only about $27,000 per annum and taking account of the benefit flowing to the wife from having immediate access to more capital than the husband will have, we consider that an adjustment of 5% would lead to a just and equitable outcome.
Counsel for the husband submitted at the hearing before us that the s 75(2) adjustment should be applied equally to the superannuation assets and the non-superannuation assets. No submission was made by counsel for the wife to the contrary and we consider this to be the appropriate outcome. The wife will accordingly be entitled to receive $340,551 of the non-superannuation assets and $179,537 of the superannuation assets.
The net value of non-superannuation assets the wife is entitled to receive pursuant to the orders of the trial Judge is $341,579. She will therefore be required to pay to the husband the sum of $1,028. She will also be required to refund any portion of the sum of $42,314 the husband may have paid pursuant to his Honour’s orders.
The wife already has $31,137 in superannuation assets. The base amount to be allocated to her from the husband’s superannuation fund will therefore be $148,400 in order to bring about the required division.

Costs

We were asked by counsel not to receive costs submissions until after the appeal had been determined. Our orders provide for the filing of written submissions on costs issues.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 4 March 2009