Welch & Abney

In the case of Welch & Abney, the Court of Appeal was asked to consider the approach taken by the primary judge in dividing the property of the parties, with a particular focus on the wife's non-commutable and contingent pension for total and permanent disability, received as part of her occupational superannuation. The appeal was filed by the respondent husband, challenging the orders made by Austin J on 14 December 2015, which had not been deemed just and equitable. The wife's TPD pension, treated as a component of her occupational superannuation, was a central issue in this case.

The legal issues the court had to address were whether the primary judge erred in his approach to the valuation and division of the wife's TPD pension. This included whether he correctly calculated the present value of the pension, considered the evidence regarding its distinct nature from normal superannuation interests, and accounted for taxation and contingencies. The court also had to determine if the primary judge failed to recognise the wife's contribution to the marriage if the pension was valued at the capitalised amount, and if the orders made were just and equitable.

In its reasoning, the court found that the primary judge had indeed erred in his approach. The judge had adopted the capitalised amount of the TPD pension as calculated under section 90MT(2) of the Family Law Act 1975 (Cth) but failed to make a splitting order. Furthermore, the court noted that the primary judge did not properly consider the evidence of the expert, who highlighted the different nature of the TPD pension compared to typical superannuation interests. The court also determined that the primary judge overlooked the impact of taxation on the pension and did not account for contingencies, nor did he recognise the wife's contribution if the pension was treated as having the value of the capitalised amount. The court concluded that the orders made were not just and equitable, and thus allowed the appeal, setting aside the orders of the primary judge and remitting the proceedings for re-hearing by a different judge.

The final orders of the court included dismissing the husband's appeal, allowing the wife's appeal, and setting aside the orders made by Austin J. The proceedings were to be re-heard by another judge, and costs certificates were granted to both parties for the appeal and the re-hearing, pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).