SDM & JCM - [2006] FamCA 840

[2006] FamCA 840

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT SYDNEY Appeal No. EA5 of 2006
File No. SYF5034 of 2003

IN THE MATTER OF: SDM

Appellant Husband

AND: JCM

Respondent Wife

CORAM: WARNICK, MAY AND BOLAND JJ

DATE OF HEARING: 26 JULY 2006

DATE OF JUDGMENT: 30 AUGUST 2006

JUDGMENT OF THE FULL COURT

Appearances: Mr Maurice of Counsel, instructed by Bull, Son & Schmidt, Solicitors, Level 7, 1 Chandos Street, ST LEONARDS NSW 2065 appeared on behalf of the appellant husband

Mr Twigg, Solicitor, of Adrian Twigg & Co, Solicitors, Suite 3, Level 10, 162-166 Goulburn Street, SYDNEY NSW 2000 appeared on behalf of the respondent wife

Name of Appeal	SDM & JCM
Appeal Number	EA5 of 2006
Date of Appeal Hearing	26 JULY 2006
Date of Judgment	30 AUGUST 2006
Coram	WARNICK, MAY & BOLAND JJ

Catchwords: APPEAL FROM DECISION OF FAMILY COURT JUDGE – PROPERTY SETTLEMENT – SUPERANNUATION – SECTION 75(2) FACTORS – The parties were married in 1987 and separated in 2002 – In making orders for property settlement between the parties, the trial Judge assessed the contributions to non-superannuation assets at 55/45 in favour of the husband – The trial Judge then made an adjustment under s 75(2) of 30% in favour of the wife, providing for a division of “tangible” assets 75/25 in favour of the wife – The trial Judge then turned to consider the parties’ superannuation interests – The trial Judge approached the division of superannuation by asking whether it would be just and equitable to divide superannuation 75/25 to the wife – The trial Judge concluded it would not as the husband would be left with inadequate “assets” – The trial Judge ordered that the wife retain her own superannuation interests and only be entitled to 20% of the husband’s superannuation interests – In considering the division of superannuation interests, the trial Judge precluded herself from applying the recognised four-step approach to property division, including a consideration of the parties’ contributions to the superannuation interests and a consideration of s 75(2) factors – Further, neither in the consideration of the division of tangible assets nor the division of superannuation interests did the trial Judge address the ‘just and equitable’ ‘mix’ of assets – In departing from the approach set out in Coghlan and Coghlan, the trial Judge failed to give adequate reasons for doing so
PRACTICE AND PROCEDURE – NOTICE OF CONTENTION – The wife filed a notice of contention in relation to the appeal asserting that the trial Judge erred on various matters of fact and law – The necessity for a notice of contention in an appeal in which the challenge is to the assessment of contributions or s 75(2) factors, or as to the adequacy of reasons for an exercise of discretion, is doubted – It is unlikely that if an appealable error is discerned, an appeal could simply be rejected nonetheless because some other error raised by a respondent had also occurred.

Coghlan and Coghlan (2005) FLC 93-220

Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Norbis v Norbis(1986) 161 CLR 513
VAK and AK [2005] FamCA 803
Appeal allowed. Order 4 of the orders of 16 December 2005 varied. Costs certificates granted to both parties.

Introduction

On 16 December 2005, Lawrie J made orders in proceedings over parenting issues, settlement of property and spousal maintenance. The husband has appealed the orders for property settlement, which effected a division of net assets (other than superannuation), of approximately $724,000, 75 per cent to the wife and 25 per cent to the husband. The orders also divided the superannuation interests of the parties (the husband’s being $137,389, the wife’s $6,246) so that the wife retained her interest and received a ‘split’ of the husband’s interest based on a sum calculated at 20 per cent of his interest.
The husband seeks orders that effectively divide the ‘tangible’ property of the parties, re-assessed to deduct a credit card debt of $64,000, approximately, 60 per cent to the wife and 40 per cent to him, and that the wife receives a ‘split of superannuation’ calculated on a base amount of $65,572.
As was put in the husband’s summary of argument:
‘3. The Appeal focuses primarily on complaints about three aspects of the judgment:
a. Omission of certain liabilities in the composition of the balance sheet of assets for division;’
The only ‘omission’ argued was the husband’s credit card debt at trial.
The other two aspects focussed on were:
‘b. The Appellant’s contention that an adjustment under sec 75(2) of 30% in favour of the wife of tangible (non superannuation) assets was outside the generous ambit of discretion afforded the trial judge; and
c. That Her Honour failed to give adequate reasons for her decision.’
These two aspects were substantially argued as one.
We have concluded that there is merit in the challenge to the trial judge’s consideration of s 75(2) factors and the expression of that consideration. We have further concluded that, as requested by both parties in such an event, we should re-exercise the discretion.
A notice of contention was filed by the wife, but in the circumstances its content is of little or no direct significance to a determination of whether there is merit in the grounds of appeal. Its subject matter has more relevance to a re-exercise of discretion and we will say more of it later.
Before we detail our consideration of the meritorious arguments on appeal, we set out below a summary of the trial judge’s reasons and facts as found.

Summary of the reasons and findings of Lawrie J

The husband was born in 1955, the wife in 1957. The parties married in April 1987 after a cohabitation of about 9 months. There are two children of the marriage, “W” born in 1989, and “H” born in 1993. The parties separated in December 2002.
Her Honour determined the ‘property’ of the parties to be:

($)
· proceeds of the sale of the former matrimonial home (less $100,000 which has been distributed equally to the parties). $700,515 plus interest	700,515
· husband’s car ($16,000 subject to a loan of $15,000), net equity $1,000	1,000
· wife’s car	11,000
· furniture – husband	1,000
· furniture - wife	6,670
· wife personalty – jewellery	900
· husband personalty	1,500
· husband savings	1,412
$723,997

There is no appeal against the trial judge’s assessment of contributions. Her Honour assessed these, up to the time of separation, as favouring the husband 60 per cent to the wife’s 40 per cent. This reflected weight given to an initial contribution by the husband. Her Honour then adjusted the contribution findings a further 5 per cent in favour of the wife, to reflect contributions between separation and trial.
At the time of trial, the husband was a computer consultant and had estimated an average annual income of $96,000. The wife, though trained as a primary school teacher, had not worked as such for a long time. She had at one time held a position selling for a computer company and earned about $40,000 - $50,000 in the last year she worked. The trial judge ‘put her earning capacity at about a third of the husband’.
After so determining, Lawrie J turned to consider ‘whether there should be an adjustment to take into account the factors in section 75(2)”.
The trial judge noted that the husband was 50 years and the wife 48. Neither had any significant health problems.
She then said, in relation to the financial circumstances of each of the parties and their capacity for gainful employment:
‘51. The husband has a greater capacity to earn income, but I believe that the wife has a greater capacity to earn income than she will admit. She did not appear to have seriously sought work. The husband has greater financial resources in the form of superannuation. The superannuation fund is a private fund which started on 28 September 1998. Two or three other smaller funds were rolled into it. He will not be able to access his superannuation in the short to medium term.’
Her Honour recognised that the wife had the care of the two children of the marriage and she noted their dates of birth. Further as to the wife’s earning capacity and in particular, the effect upon that of the duration of the marriage, the trial judge later said:
‘60. This is a significant factor in that being out of the workforce whilst she has been the principle [sic] carer for the children has disadvantaged her in competing in the workforce and has adversely affected her earning capacity. It has also left her in a position where her superannuation is less than 5% of the husband’s.’
As to child support, her Honour referred to it as having been considered earlier. In paragraph 41 she had noted:
‘41. …and the husband has been paying appropriate child support, with the exception of the two sums he received after the retrenchment which may not all have been revealed to the Child Support Agency.’
Her Honour then said:
‘67. The wife has six years of care for [H], and a lower income-earning capacity which is compounded by the difficulties which caring for children creates. I would see an adjustment of 30% as being appropriate in the circumstances, giving the wife a 75% share of the property.’
Then, her Honour turned to the consequence of such a division, but only in respect of the ‘non-superannuation assets’, before addressing the issue of a division of superannuation interests. As her Honour’s reasons for the apportionment of superannuation are fundamental to the submissions attacking the adequacy of them, we will set relevant passages out when considering those arguments. Her Honour’s conclusion in respect of a division of superannuation entitlements was:
‘71. … The husband should therefore only be required to make an allowance of 20% of his superannuation ($27,477) with the wife to retain all of hers.’
Finally, Lawrie J turned to the question of spousal maintenance, deciding that the husband was not able to meet any requirement for payment. She then pronounced the orders in disposition of all applications.

The arguments on appeal

The Notice of Appeal contains four grounds, but we see no point in setting them out here. As set out in the introduction, the grounds were summarised in the Outline of Argument into three headings, which in oral submissions were reduced to two propositions: firstly, that the credit card debt of the husband at trial ought have been deducted to achieve net tangible assets; secondly, that the trial judge’s dealing with s 75(2) factors was deficient:
•in that the assessment of 30 per cent was manifestly excessive both of itself and more particularly when what was ultimately done with superannuation was taken into account; and
•because the reasons were inadequate.
As seen earlier, having decided upon a division of tangible assets, her Honour turned to the question of a division of superannuation assets. Her deliberations are contained in three paragraphs:
‘69. How should the superannuation assets be divided? If the superannuation is divided on the same lines, it will give the wife 75% of $144,135 namely $108,101 of which she has already $6,746, leaving $101,355 as her share of the superannuation, and would leave the husband with $40,780 for his.
70. On an overview, is this a just an [sic] equitable result? The language of the legislation which speaks of standards of living “that in all the circumstances are reasonable”, being ineligible to seek maintenance if able to support oneself “adequately” and looking to things that are “necessary” indicates that the court and the parties must operate in a situation where they must accept that the standard of living of two families living apart is lower than that when all live together. There is simply not enough money to go around particularly since so much of the family treasure has been spent on litigation.
71. I do not think it is a just result in that it provides for the wife to get the lion’s share principally on the basis that she has the children to care for. It leaves her in a position to purchase a modest home for herself and the children particularly if she applies herself to earning some income. The husband will have to borrow a significant amount to get similar accommodation. The share he receives of the superannuation assets on this arrangement will not be likely to enable him to clear his mortgage when he stops work. The only way for the result to be just would be for the superannuation to substantially remain with the husband to recognise that the husband’s receipt of a significant part of his entitlement is being deferred for probably at least ten years, while the mother will be having the bulk of hers forthwith. The husband should therefore only be required to make an allowance of 20% of his superannuation ($27,477) with the wife to retain all of hers.’
The subject of paragraph 69 is simply mathematical. The content of paragraph 70 seems to add little to the trial judge’s deliberations. That leaves one paragraph of reasoning in respect of the division of superannuation. We think that within that paragraph lies some confusion about the correct approach to the division of property, where the parties or one of them also held superannuation interests.
In paragraph 71 the trial judge seems to have approached the question of division of superannuation interests by only posing for herself the question of whether the wife ought receive the same percentage of superannuation as she was to receive in respect of tangible assets.
In so doing, Lawrie J seems to have precluded herself from considering questions such as:
(i)     contributions to superannuation
(ii)     the nature of the superannuation “assets”
(iii)     the impact of any s 75(2) factors on the question of apportionment of superannuation
(iv)     what would constitute a just and equitable “mix” of asset types for each party
Despite referring to matters such as the wife’s capacity to purchase a home and the deferment of the husband’s ability to realise his superannuation interests at paragraph 71 of her reasons, perhaps because of the content of the only question her Honour posed for herself, the significance of those matters seems to have been taken as no more than limiting the proportion of superannuation which the wife might receive.
Thus, neither in her consideration of the division of tangible assets nor the division of superannuation assets, did Lawrie J address the ‘just and equitable’ ‘mix’ of assets; that is whether, in the overall division, the husband should receive more than 25 per cent of the tangible assets and the wife receive more superannuation than 20 per cent. Rather, her Honour seems to have started and finished her consideration of ‘justice and equity’ with the question of how much of his superannuation the husband ought retain.
The trial before Lawrie J took place over four days in late January 2005. At that time the approach to be taken in property settlement applications in which there were superannuation interests and particularly where splitting orders or other orders in relation to superannuation interests were sought, was set out in Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143. At paragraph 75 the Full Court (Nicholson CJ, Ellis and O’Ryan JJ) had said:
‘75. Although, for obvious reasons, the definition of property in s. 4 was not amended to include a superannuation interest or deem such an interest to be property, the effect of s. 90MC is that in proceedings in relation to property under s. 79 a superannuation interest is to be treated as property irrespective of whether or not a splitting or flagging order is sought or proposed to be made. As was submitted on behalf of the husband, the expression ``treated as property'' should be understood as meaning ``treated as if it were property even though it is not'' and that it should be so treated for the purposes of s. 79. It was further submitted that the intention of the Parliament is clear from Note 1 to s. 90MS. Because a superannuation interest is to be treated as property in s. 79 proceedings it follows that it will be included in the list of property and valued at what is step one of the preferred four step approach to the determination of an application pursuant to s. 79. At step three the superannuation interest may be taken into account, as are other items of property and financial resources, pursuant to the provisions of s. 75(2) if the interest is relevant. The superannuation legislation introduced reforms which are directed to how a court will deal with a superannuation interest at steps one and four of the preferred four step approach in the determination of an application under s. 79. The legislation did not amend s. 79 or s. 75.’
Counsel for the husband suggested that neither party had argued before Lawrie J that the superannuation interests of the parties ought be included in the pool of assets for division. There was no disagreement with that submission. Notwithstanding the approach apparently taken by the parties below, if the propositions in Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (supra) had been followed, the superannuation would have been treated as ‘property’, whether included in a table of assets for division or not. Accordingly, questions of contribution to the superannuation interests would have required consideration and regard might have been had to the nature of superannuation interests, as well as a ‘just and equitable’ mix of asset types both at ‘step 3’ and ‘step 4’.
The discussion of the judgment in Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (supra) is, however, essentially only by way of introduction to the pronouncements contained in Coghlan and Coghlan (2005) FLC 93-220 about the preferred approaches to cases under section 79 where superannuation interests are involved. In that case, the majority (Bryant CJ, Finn and Coleman JJ) said:
‘56. …In the circumstances now prevailing since the introduction of Part VIIIB, in which a valuation which provides an indication of the true worth of a superannuation interest can be made available and in which the Court has the capacity to make a splitting order in relation to payments made in respect of a superannuation interest, a Court may well only be able to satisfy itself that any order it makes will be just and equitable, if it applies to its consideration of the superannuation interests, the criteria for determining a just and equitable order - those criteria being in effect the matters contained in s 79(4) of the Act.
…
58. Thus, we consider that because of the obligation under s 79(2) to make a just and equitable order, then in order to ensure such a result the Court should wherever there is a superannuation interest apply the provisions of s 79(4)(a) to (g) (which will include the matters contained in s 75(2)) to that superannuation interest whether or not a splitting order is sought.’ (original emphasis)
As pointed out above, the trial judge did not consider all of the provisions of s 79(4)(a) to (g) in relation to the appropriate division of the parties’ superannuation interests.
We are conscious that the approaches set out in Coghlan and Coghlan (supra) are but ‘preferred approaches’. However, Lawrie J gave no reasons for departing from them.
As Brennan J said in Norbis v Norbis (1986) 161 CLR 513 at 537:
‘…There may well be situations in which an appellate court will be justified in setting aside a discretionary order if the primary judge, without sufficient grounds, has failed to apply a guideline in a particular case. Where there is nothing to mark the instant case as different from the generality of cases, the failure will suggest that the discretion has not been soundly exercised. The distinction between such a guideline and a binding rule of law, though essential, may be thin in practice. But the distinction must be maintained and a failure to apply the guideline cannot be treated as an error of law: a failure to apply the guideline is no more than a factor which warrants a close scrutiny of the particular exercise of the discretion.’

In VAK and AK [2005] FamCA 803, the Full Court of the Family Court, following a discussion about the departure by a trial judge from the recommended 3 or 4 step process in a property case, said:
‘66. We do of course accept that there does remain open to a trial Judge the opportunity under the Act, not to adopt the step process in the generally accepted manner. While an alternate process has dangers and normally is avoided it exists subject to there being reasons provided for such a departure.’
In the instant case, as stated, Lawrie J gave no reasons for the approach which she adopted, in which she failed to consider important factors relating to contributions, s 75(2) factors and the justice and equity of her proposed orders.
Further, as to Lawrie J’s treatment of s 75(2) factors, there is no indication that when deciding on a division of tangible assets, her Honour reminded herself that she intended to divide superannuation assets so as to give approximately 20 per cent to the wife. Nor did she revisit the proposed division of tangible assets after deciding on the division of superannuation, for the purposes of considering the justice and equity of the apportionment of tangible assets.
We note that, when considering s 75(2) factors, the trial judge referred to superannuation of the husband as a ‘resource’, though she termed it an ‘asset’ when considering division of it. This difference in terminology may have contributed to some confusion in the treatment of superannuation interests.
In any event, we are satisfied that her Honour has failed to properly treat the superannuation interests of the parties and to give adequate reasons for the exercise of her discretion in relation to the assessment of s 75(2) factors and in particular the superannuation interests of the parties. This inadequacy of reasons extends to the failure to address the proposed division of superannuation interests when considering s 75(2) factors and the failure to consider then and/or when addressing the justice and equity of the orders, an appropriate ‘mix’ of tangible assets and superannuation assets.
We consider therefore that there is merit in the arguments here discussed.

The trial judge’s assessment of s 75(2) factors

As we intend to re-exercise the discretion, partly because of a failure by the trial judge to properly address s 75(2) factors, in particular relating to superannuation interests, we think it unnecessary to otherwise deal with this challenge.

The credit card debt

In view of our findings about the inadequacy of reasons, it is not necessary from the point of view of merit in the appeal to address the argument about the credit card debt. However, as it would be necessary in any re-exercise of discretion to consider the debt, we deal with the argument here.
Counsel for the husband submitted that the facts relevant to this issue were that at the time of separation, the husband had credit card debts of $27,275 and, as he had set out in his written summary of argument:
‘14. The trial judge found that shortly after separation the wife had used the husband’s credit cards without his authority taking $15,000 worth of cash and credit in a few days. The husband was required to meet all repayments on those credit cards. As at June 2004 the balance was $56,467.23 and at the date of trial the balance was $63,951. This figure was included in the balance sheet prepared on behalf of the Appellant husband. It was referred to by Her Honour at paragraph 21 of the judgment. However Her Honour, without explanation, omitted it from the balance sheet and in her calculations of the entitlement of the parties. It appears therefore to have been omitted in error.’ (footnotes omitted)
It is true that the trial judge omitted the credit card debt from the ‘balance sheet’ and that there are no express reasons for that omission.
However, after her Honour set out the property pool as earlier described, she embarked upon a consideration of arguments put on the wife’s behalf about inclusion of further property in the ‘matrimonial pool’. Having dealt with those issues, she next set out the details of the parties’ superannuation interests and then, albeit under the heading ‘The parties’ liabilities’, she set out the husband’s debts, including a car loan (which she noted had been already taken into account in estimating the equity in the car included in the asset pool), legal fees owed by the husband and the credit card debts amounting to $63,951. Her Honour then immediately addressed the situation that:
‘22. Since the separation the wife has had the use of joint funds of approximately $17,000, (repaid by the husband from his $50,000 drawdown from the proceeds of the sale of the house). I take these into account as contributions to the family which have been made by the husband, rather than by notionally adding them back.’
Later, in respect of both the $50,000 that the husband drew down from the house sale proceeds and the credit card debt, Lawrie J said:
‘43. As indicated above, each of the parties withdrew $50,000 from the sale proceeds of the house following court orders. The husband applied his to paying off the banks for debts and credit cards (significant sums having been “run up” by the wife since separation, and some legal fees as well as for living expenses.’
In relation to the use that the wife had made of the $50,000 that she had drawn, Lawrie J said:
‘23. The wife had her drawdown of $50,000 from the house which has all been spent. She has worked in paid employment only for odd days here and there as a relief teacher and doing some acting in a television commercial.’
Her Honour then turned to a discussion of school fees and circumstances bearing upon her Honour’s treatment of a $30,000 debt in respect of them. That discussion included reference to the funding of school fees in the past, which in turn involved questions of the sale of shares post-separation and the expenditure of some of the $17,000 which the wife had drawn against the credit cards. That led into discussion of other debts of the wife. Her Honour then summarised the wife’s debts as follows:
‘36. In summary the wife is in debt:

*($)*
· borrowings by wife from family for living expenses	11,000
· borrowings by wife from Commonwealth Bank	30,000
· credit card debts of wife	33,500
· HECS owed by wife	1,500
· legal fees of wife	E 50,000
*$126,000*’

Obviously, there were a number of items that her Honour might have included in a net asset table. Not only did she not include the credit card liability and legal fees of the husband, but she also did not include any of the liabilities of the wife, nor did she write back against either party the $50,000 that each had received from the proceeds of sale of the former matrimonial home.
However, there was no appeal against the way in which her Honour dealt with any of these items, except for the credit card debt of the husband.
Often, in determining a table of net assets and deciding whether to include or exclude one or more debts, a court will, quite properly, have regard to the decision to include or exclude other debts. There are offsets and counterbalances. Or, the court may take account of an “item” at some other point in the discretionary exercise.
From the paragraphs of her Honour’s reasons quoted above and her consideration overall of the assets and liabilities of each party, as well as the use of funds post-separation, we consider that it is apparent that her Honour performed such a ‘balancing’ exercise and also took account of some payments by the husband as a contribution.
In such circumstances, we are not persuaded that a failure to include in the asset table one of a number of items excluded constitutes error.

The notice of contention

No rule in the Family Law Rules 2004 provides for a notice of contention.
Section 38(2) of the Family Law Act 1975 (Cth) provides, in effect, that in so far as rules made under the Act and the Family Law Regulations 1984 are ‘insufficient’, the rules of the High Court ‘as in force for the time being, apply, mutatis mutandis, so far as they are capable of application…’.
Rule 42.08.5 of the High Court Rules 2004 provides:
‘42.08.5 Where a respondent does not seek a discharge or variation of a part of the judgment actually pronounced or made, but contends that the judgment ought to be upheld on the ground that the court below has erroneously decided, or has failed to decide, some matter of fact or law, it is not necessary to give a notice of cross-appeal, but that respondent shall file and serve, within the time limited by rule 42.08.1, a notice of that contention in Form 27.’
The contentions in the notice given in this case were:
‘1.     Her Honour Justice Lawrie erred in failing to include as an asset in each parties’ hand the payment by way of partial property settlement of $50,000 for each party.…
2.     Her Honour Justice Lawrie erred in failing to include as an asset in the Husband’s Hands, as a notional asset, the monies received by the Husband from [O] totalling $34,455 and $28,691 respectively,…
3.     Her Honour erred in finding the Husband had been paying “appropriate Child Support” in circumstances where the Husband’s Child Support was generally minimal, and erred further in not making greater provision to the Wife pursuant to s75(2) of the Act by reason of the level of Child Support paid.
4.     Her Honour erred in granting to the Wife only 20% of the Husband’s superannuation.…
5.     Her Honour erred in not taking into account as matrimonial debts, the school fees for the children, and borrowings incurred by the Wife for school fees,…’
We doubt the necessity for, or utility of, a notice of contention in an appeal in which the challenge is really to the assessment of contributions or s 75(2) factors (where relevant factors are several or even numerous), or as to the adequacy of reasons for an exercise of discretion. This is particularly so where all that a respondent desires to do is point out that, though too much weight might apparently have been given to one factor, too little weight has apparently been given to others. To some extent at least, we think that is all that some parts of the notice of contention do in this matter. These observations apply equally where the discretionary factors under consideration are the inclusion or exclusion of items in a table of assets for division, unless there is clear error in respect of a particular item.
We think it unlikely that if an appellable error was discerned, an appeal could simply be rejected nonetheless because some other error raised by a respondent had also occurred. If error was discerned in respect of a discretionary factor, whether the impact of that was counterbalanced by error in relation to one or a number of other discretionary factors, would almost certainly be discernible only upon what would in effect be a re-exercise of discretion. We see it as unnecessary to have filed a notice of contention before being able to address the Court to the effect that in a re-exercise, factors ought be given some particular weight different to that apparently given by the trial judge.
Counsel for the husband also submitted that the notice of contention argued for approaches not sought at trial, and that such arguments ought not be permitted on appeal.
Without deciding whether a respondent who merely files a notice of contention is in all circumstances prevented from raising matters not agitated below, when it is appreciated that the notice must relate to contentions that error has occurred in the court below, it may well often be fatal to such an argument that the point was not there taken.
In any event, in relation to the notice of contention, we consider that, for reasons similar to those given in respect of the issue of the credit card debt, we are not in a position to say that the trial judge’s decision not to write back the $50,000 received by each party by way of partial property settlement, or the monies that the husband received from “O” was an error. Moreover, the trial judge gave express reasons for not including the O debt, as sought by the wife.
Further, counsel for the wife did not challenge the contention for the husband that neither party had at trial sought the inclusion of the $50,000 in the asset pool.
The other matters in the notice of contention also merely go to her Honour’s treatment of particular factors in the discretionary exercise. While in the event of a re-exercise of discretion, we may reach a different result to that arrived at by the trial judge, we do not consider that the legal representative for the wife has shown error in the trial judge’s treatment of these matters.

Re-exercise of discretion

The parties seek re-exercise of discretion by this Court. They do not wish a retrial and its attendant costs, delay and inconvenience. Where as here, a basis for the success of an appeal is inadequacy of reasons, it frequently follows that there have been insufficient findings to enable a re-exercise. We think in the instant case that the trial judge’s approach to s 75(2) factors and the question of the justice and equity of the orders makes re-exercise less than comfortable. However, on balance, we think we should accede to the parties’ request. Neither party sought to put further evidence before us.
As we have already stated we consider that we ought accept the asset pool as found by the trial judge.
Moreover, in our view, we should accept the assessment of contributions of the trial judge. The only suggestion otherwise came from the solicitor for the wife who argued that the trial judge had underestimated a contribution by the wife from compensation payments following a motor vehicle accident. The trial judge calculated these contributions as amounting to $30,000. The solicitor for the wife said the evidence put them at $46,000.
Beyond that we were not addressed on contributions, various forms of which were identified and weighed by the trial judge. It is certainly not apparent that, even had she regarded the compensation as being in the sum as asserted by the solicitor for the wife, Lawrie J would have reached any different result. There being no appeal against the assessment of contributions, we do not consider that in these circumstances we should revisit the assessment of contributions. However, as seen, the trial judge only applied an assessment of contributions (at least in any transparent way) to the “tangible” assets.
As to the superannuation interests of the parties, which, as seen, overwhelmingly are the interests of the husband, we are of the view that, having regard to the time at which the major interest commenced (1998; with two or three smaller funds rolled into it) that on a contributions basis, the superannuation interests ought also (notionally only at this stage) be divided in the same proportion as that assessed by the trial judge in relation to the tangible assets, namely 45 percent to the wife and 55 percent to the husband.
In assessing s 75(2) factors, all of those factors assessed by the trial judge are pertinent. However, as seen, in assessing an adjustment for s 75(2) factors in respect of the tangible assets the trial judge did not recognise her intended splitting order in respect of the husband’s superannuation. As a relevant s 75(2) factor is the financial circumstances of the parties, including their income, property and financial resources, it is appropriate when giving weight to that factor to have regard to the type of asset held, and to be held, by each party. It becomes appropriate at this stage to consider whether any splitting order will be made and, if so, the extent of it. Such considerations are also relevant to the justice and equity of proposed orders.
As seen, a 75 per cent division of the ‘tangible assets’ in favour of the wife represents $542,997.75 and the husband’s 25 per cent amounts to $180,999.25. The trial judge observed that the division of the tangible assets left the wife in a position to purchase a modest home for herself and the children. It was argued before us that that was an inappropriate matter for the trial judge to take into account. There is nothing in the trial judge’s reasons to assist us in reaching a decision about whether any lesser amount than the wife was to receive under the trial judge’s orders might also see the wife and children housed by way of home ownership. This is the sort of limitation of which we earlier spoke.
The husband seeks that the wife receive 60 per cent of the tangible assets, which however on the calculations urged by him, would be $64,000 approximately less than assessed by the trial judge. Thus, he seeks that the wife receive $396,000 which is $146,997 less than the trial judge’s award. While we recognise that the husband proposes that the wife also receive a splitting order in her favour based on $65,572, which is but $38,095 more than the order of the trial judge, having regard to the unchallenged view of the trial judge that the amount she proposed the wife receive of the tangible assets would only provide a modest home, we do not think that we could find an amount $146,997 less, would enable the wife to purchase a modest home.
In these circumstances, we consider the range within which the mix of tangible assets and superannuation assets might be balanced, is narrow.
There are no findings by the trial judge about any particular need of the husband for capital, although implicitly it seems to have been accepted that it was reasonable for him to purchase housing, no doubt with the help of significant borrowings. If both these ends are accepted as reasonable objectives touching upon the justice and equity of orders and in particular the ‘mix’ of assets to be retained by each party, then we think the necessary consequence is that the wife, who has much less capacity to retain and repay any borrowing, needs to receive most of the ‘tangible assets’. As perceived by the trial judge however, if the wife does receive most of the tangible assets, the only asset of substance remaining is superannuation. Like the trial judge, we conclude that it is appropriate for the husband to retain most or all of his superannuation. In this regard we also think it appropriate for there to be a splitting order in the wife’s favour of the husband’s superannuation of 20 per cent.
Bearing these conclusions in mind, we revisit the relevant s 75(2) factors.
We note the ages of the parties at 50 and 48. The time for which the husband might retain his greater earning capacity is obviously limited by his age, but nonetheless might be seen as extending beyond the age of 60. We note the wife’s continuing care of the two children of the marriage, but that the younger is 13 years of age. As found by the trial judge, the husband is likely to pay appropriate child support. Of course by the time the husband pays taxation and child support the differential between the parties in disposable income may not remain as great as the wife’s disposable income being only one-third of that of the husband. Nonetheless, we think it probable that the husband can set aside some savings or capital from income each year, or at least service borrowings which include capital reduction.
If one addresses the size of the property pool and thinks in terms of 5 per cent lots, each represents just over $36,000. The major purpose of an adjustment in this case is to reflect the disparity in earning capacities, for a period reasonable in the circumstances. In our view, an appropriate adjustment in favour of the wife for s 75(2) factors is 22.5 per cent. This we consider likely to put the wife in the position of being able to obtain a modest home, but does not ignore the consequence to the husband in the nature of assets that he will retain.
The consequence of our conclusions is that the wife should receive 67.5 per cent of the tangible assets, a split of the husband’s superannuation interest of 20 per cent, as ordered by the trial judge, and retain her superannuation of $6,746. Sixty-seven point five percent of the tangible assets is $488,698. The wife already has chattels of $18,570. Thus the wife should receive from the proceeds of sale of the house $470,128. The husband’s share of the tangible assets at 32.5 per cent is $235,299. He has chattels of $4,912 so should receive from the sale proceeds, $230,387. He will retain superannuation of $109,912.

In the circumstances, the only alteration of the orders of the trial judge need be to substitute those figures for the numerators in the fractions in Order 4 of Lawrie J’s orders.

Certificates

Each party submitted that if the appeal succeeded, as it has, that it was an appropriate matter for the grant of certificates under the Federal Proceedings (Costs) Act1981 (Cth) and we agree.

ORDERS

That the appeal be allowed.
That Order 4 of the orders of 16 December 2005 be varied by the deletion of the numerator ‘$524,427’ and the substitution of the figure ‘$470,128’ the deletion of the numerator ‘$176,087’ and the substitution of the figure ‘$230,387’ and the deletion of the figures 75% and 25% and the substitution of 67.5% and 32.5% respectively.
That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by the appellant husband in relation to the appeal.
That the Court grants to the respondent wife a costs certificate pursuant to the provisions of section 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by the respondent wife in relation to the appeal.