Woodgate and Woodgate

[2014] FCCA 2419

FEDERAL CIRCUIT COURT OF AUSTRALIA

WOODGATE & WOODGATE [2014] FCCA 2419

Catchwords:
FAMILY LAW – Property – Wife’s contribution based entitlement to Husband’s hurt on duty commuted lump sum – adjustment under section 75(2) of the Act to the Wife.

Legislation:
Family Law Act 1975

Hayton & Bendle [2010] FamCA 592
T & T [2006] FamCA 207
Crawford & Crawford [2012] FMCAfam 1315
PJM & STM (2005) FLC 93-242

Bailey v Bailey (1978) FLC 90-424

Applicant: MS WOODGATE

Respondent: MR WOODGATE

File Number: PAC 4159 of 2012

Judgment of: Judge Henderson

Hearing dates: 26 June, 2, 15 September 2014

Date of Last Submission: 15 September 2014

Delivered at: Sydney

Delivered on: 30 October 2014

REPRESENTATION

Counsel for the Applicant: Ms Barnett

Solicitors for the Applicant: Lough Wells Duncan Lawyers

Counsel for the Respondent: Mr Jackson

Solicitors for the Respondent: Baldock Stacy & Niven

ORDERS

1. The husband pay to the wife the sum of $680 per week by way of spousal maintenance until such time as the husband commutes his hurt on duty pension to a lump sum when this order shall cease.

2. First such payment to be made with 7 days of the date of this order and paid into a bank account nominated by the wife.

3. Forthwith the wife to receive the sum of $37,528 from the monies held on trust and the husband the balance.

4. On 4 May 2018 the husband do all acts and things necessary to commute his hurt on duty police superannuation pension to a lump sum.

5. Forthwith upon the husband commuting his hurt on duty pension to a lump sum he is to authorise a payment to the wife of 57% of that lump sum with the remainder to be paid to him.

6. Otherwise both parties to retain all items of personalty, cash and superannuation in their names.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

PAC 4159 of 2012

MS WOODGATE

Applicant

And

MR WOODGATE

Respondent

REASONS FOR JUDGMENT

1. The matter of Woodgate is an application commenced by the wife seeking adjustment of property. The real asset of significance is the husband’s superannuation benefit as a police officer hurt on duty.

2. The only other matrimonial property is $57,498 held in trust, being the proceeds of sale of the former matrimonial home together with some chattels.

3. The husband’s superannuation benefit is close to $1 million and is in addition to the receipt by him of a substantial fortnightly pension.

4. The husband has an interest in superannuation accrued post separation from his work as an (occupation omitted) with the (employer omitted) and an interest in a property at Property K with his partner which is agreed are resources available to him and do not form part of the matrimonial property for division.

5. Ms Barnett of counsel represented the applicant wife and Mr Jackson of counsel the respondent husband.

6. The documents I read are as follows.

7. For the wife.

8. Application filed 23 October 2012.

9. Trial affidavit and financial statement filed 25 June 2014.

10. Affidavit of her sister, Ms P filed 17 June 2014. Ms P was not cross-examined.

11. The wife also relied upon an affidavit of Mr R, an orthopaedic surgeon filed 20 September 2013. He was not cross-examined.

12. The wife tendered three exhibits.

13. Wife’s Exhibit 1, a minute of order sought.

14. Wife’s Exhibit 2, a letter from (omitted) Super setting out the value of the husband’s superannuation benefit when he commutes his pension into a lump sum at age 55 some 4 years away. Both the husband and wife agree he should commute his current pension. The commuted net lump sum in 4 years will be $949,061.41.

15. Wife’s Exhibit 3, a current payslip for the husband showing his income for the period of 5 June 2014 to 18 June 2014 of net $1,906. The husband has recently gone to part time work at his request. There is no impediment to his capacity for full time work.

16. Wife’s Exhibit 3 states the husbands gross income for the year up to 18 June 2014 was $77,201, with tax of $17,856 paid. His superable salary was $78,148.

17. The husband’s documents.

18. Response filed 20 September 2013.

19. The husband’s affidavits filed 30 August 2013 and 16 June 2014 and financial statement filed 16 June 2014.

20. Affidavit of his partner, Ms L filed 2 September 2013. Ms L was not cross-examined.

21. Affidavit of Dr S the husband’s treating consultant psychologist filed 28 August 2013. Dr S was not cross-examined.

22. Affidavit of Mr R, who prepared valuation of the husband’s superannuation which could have been of some assistance, had it been able to be read. Ultimately this valuation was not relied upon by either party.

23. Each party’s lawyers produced a case outline.

24. Only the husband and wife were cross-examined.

25. After the hearing was completed I requested the matter be re-listed as I was dissatisfied with the state of evidence in regard to the wife’s clear claim and right to spousal maintenance having been “overlooked” during the hearing.

26. That reopening occurred on Tuesday 2 September and the following was relied upon.

    (a)Written submissions by each party.

    (b)Cross-examination of each party via the telephone.

    (c)Further submissions.

    (d)The wife’s affidavit filed 28 August 2014.

27. The matter was re-listed for mention on 15 September 2014 on the husband’s application to adduce further evidence in relation to a change in his pension entitlements being a reduction of his current payment.

28. On 15 September 2014 the husband tendered a letter from (omitted) Super dated 2 September 2014 which became Husband’s Exhibit 1.

29. That letter indicated the husband unfitness for work was no longer regarded as totally incapacitated and his pension entitlement had been reduced from 90% of salary to 74.34% of salary.

30. Orders were made by consent for the husband to file in chambers a document quantifying the monetary change in his pension.

31. The first document received was dated 23 September 2014 and provided the following information as to a change in the husband’s fortnightly pension.

32. The new gross pension per fortnight is $2,747.29 reduced from $3,320.23 and his net fortnightly pension is now $2,285.07.

33. This letter did not advise what the tax component of the old pension amount had been. This was essential information to enable me to determine the husband’s current net income as his financial statement had properly lumped together his tax on his then pension amount and his work as the one figure.

34. Chambers requested that figure be provided and this was provided in a second letter dated 24 September 2014. The husband’s tax on his prior pension was $602.22 a fortnight. It is now $462.22 a fortnight.

35. Both letters now form part of Court Exhibit 1 which was tendered at the re-opening on 15 September 2014.

36. Additionally, the husband’s income has decreased from his paid employment due to going to part-time work from that disclosed in his financial statement which gave his gross weekly income from employment as $1,198. Wife’s Exhibit 3 states his current income from part time employment is $953 a week with tax of $245 a week.  

37. Currently the husband’s current gross fortnightly income from his pension and work is $4,653.87 with tax of $952 giving a net figure of $3,701. This results in a weekly net income of $1,850 or thereabouts and not $2,338 as disclosed in his financial statement.

38. The husband agreed the wife had a claim to maintenance until such time as he commuted his pension. The issue for me was the quantum of that right.

39. The facts in the matter are not really at issue.

40. The parties cohabitated for 28 years and have been separated for four years.

41. They have three children.

42. The wife was born in 1956 and the husband in 1963.

43. In (omitted) 1985 the parties commenced cohabitation. The husband had just completed his police training at the Police Academy in (omitted) in July 1985.

44. The husband was transferred to (employer omitted) Police Station and the wife moved with him in 26 October 1985.

45. The wife asserts she had savings of $16,000 at the commencement of the relationship. The husband denied this was the case and the wife understandably had no documentary evidence to support her assertion.

46. Given the 28 year cohabitation this asserted initial contribution even if accepted by me would not have been a relevant factor in the exercise of my discretion.

47. The wife worked from (omitted) 1987 as a (occupation omitted) until Z is born on (omitted) 1987.

48. The husband confirmed and the wife agreed that they determined at that time she would remain at home and be the primary carer and parent for the children and the husband would continue his work as a police officer.

49. The wife worked part time in 1988.

50. In December 1988, the husband was transferred to the (employer omitted) Police Station and the family moved with him.

51. The parties purchased a block of land in (omitted) in 1989.

52. In 1989 the husband was promoted to (omitted).

53. X, their first son and second child was born on (omitted) 1990. The wife was doing some casual part-time work in a (employer omitted) in (omitted).

54. In 1991 the parties built a home in (omitted).

55. By 1991 the husband had been promoted to (omitted) and had completed various courses including an (course omitted) course. The husband had a fairly rapid rise throughout the ranks.

56. On (omitted) 1991 the parties third child, Y, was born.

57. In early 1992 the wife injured her back. I am satisfied today that the wife has not worked in any meaningful sense since at least Y’s birth.

58. From my observations of the wife in the witness box she suffers at times from a significant degree of back pain as set out in her material. The wife has no capacity to support herself if only due to her role as a parent and homemaker throughout the marriage and her current age of 58. It is clear and agreed that the wife carried out the role of parent and homemaker throughout the marriage and the husband earned income.

59. In 1993 the husband is promoted to a (omitted).

60. In 1995 the husband is transferred to the (employer omitted) in (omitted) and the family moves to (omitted) to live with the wife’s mother.

61. The parties sell their home in (omitted) and net about $30,000 in 1999. They purchase the former matrimonial home at Property B, in 1999 for $145,000.

62. In February 2000 the husband is promoted to (omitted).

63. The parties moved into their home at Property B in July 2000.

64. It was contended by the wife and accepted by the husband that from 2003 the husband was at times drinking to excess. The husband admitted in cross-examination he did binge drink at times. He did not accept the quantity of alcohol the wife asserted he drank, such as a carton of beer as well as Wild Turkey in one sitting regularly but accepted he drank at home, usually on the weekends, and that at times he was binge drinking.

65. It is clear from the reading of the husband’s affidavit that his work as a police officer was exceedingly onerous. He was required to travel quite extensively throughout the State. He was a valued member of the police force and was carrying out dangerous and difficult work as a (omitted) in (duties omitted). He received death threats. He was required to give evidence in court after which he received death threats and he found, understandably, his job exceedingly stressful and difficult to carry out at times.

66. In 2003 the mother said a defining event for the husband was the death of his mother. I accept this. The wife said he and his mother were extremely close and her death combined with the pressure of the husband’s work caused the husband difficulties in his emotional and social functioning.

67. In 2004 the husband received an inheritance of $20,000 and refreshed the home buying new items such as TVs, furniture and the like.

68. In 2004 the wife is referred to a neurosurgeon for problems with her back, hips and legs.

69. In late 2004 the husband has two months off work due to the difficulties he is having carrying out his job.

70. In February 2005 the husband returned to work.

71. In April 2005 the wife attended for a CT scan of her spine, a neurosurgeon in August 2005 and an MRI of her spine in August 2005 and investigations into right arm paraesthesia in September 2005.

72. By 26 October 2005 the wife asserts she had to modify the way she carried out housework and her children being of an age, were of assistance to her in carrying out these duties.

73. I accept the wife was having real difficulties with her back pain and the husband described massaging her neck, back and spine due to pain she was suffering at that time.

74. In December 2005 the husband informed the wife he was not returning to work.

75. On 6 March 2006 the husband attended Dr S and the good doctor’s report begins: “The husband has been self-medicating with alcohol.” The husband admitted and the wife attested in her oral evidence and affidavit he was drinking heavily. Dr S states he was consuming 34 to 42 standard drinks spread over three nights and four days. He was drinking heavily.

76. The husband commenced a compensation claim due to the impact of his work on his health and working capacity. The husband saw Mr M as part of his claim and said to him on 22 September 2006:

    I recall being very angry all the time, particularly at home, and relations with my wife and children were very strained. I was angry once again. My family unfairly received the brunt.

77. Dr S determined the husband was not fit to return to work on 24 November 2006.

78. The husband saw a psychologist as directed by his employer in February 2007. The husband was continuing to drink alcohol to excess and the wife says behaving poorly towards her.

79. On 20 July 2007 the husband was medically discharged from the New South Wales Police.

80. The husband thereafter carried out some casual work (occupation omitted) at (employer omitted). He is continuing to self-medicate with alcohol.

81. The husband reported to his psychiatrist on 23 September 2008 that things were still a nightmare at home. He admitted an ugly incident between him and his son, X in December 2006, at paragraph 29 of his affidavit of 23 June 2014.

82. The wife and Ms P, her sister, went to Carols by Candlelight at (omitted).

    When we finished we picked Mr Woodgate up from (omitted) football oval. We went back home. Y and X were there. Subsequently Mr Woodgate was sitting in the lounge room in his chair. He appeared to misunderstand something X said to him and became aggressive towards X. He was 16 at the time. He grabbed him by the neck. I intervened with the help of my sister and in freeing X there was pushing and shoving. I received bruises to my arm. This was only one of the incidents related to excessive alcohol intake. It was complicated by him being on medication at the time.

83. The husband admitted to that poor behaviour towards his son. That is but one example of what the wife says was the husband’s complete shutting off from the family and their lack of communication.

84. The wife said she and the husband would only communicate when absolutely necessary. The wife gave as an example, she would say to the husband, “It’s a nice day,” and he would say, “What is nice about it?”

85. In relation to problems in the home the wife gave as an example that the children no longer had friends over to their home. They would go to their room. Everyone was on tenterhooks and concerned about the father’s behaviour, his mood swings and his aggression and anger. To his credit the husband describes this same behaviour to his psychiatrist.

86. By February 2010 the parties had finally separated.

87. After separation the husband paid by way of spousal maintenance the sum of $1,790 per fortnight to the wife and was paying the mortgage on the former matrimonial home. He was paying the wife’s private health insurance. He transferred the Ford to her.

88. The husband was diagnosed with hypothyroidism in August 2010 and is on medication for this condition.

89. The husband commenced a relationship with Ms L in April/March 2011 and moved to (omitted) to take up a 12 month contract as a (occupation omitted) where he has continued to work. Until recently he was employed on a full time basis but at his request is now working part time.

90. From 9 January 2013 to date the husband pays the wife the sum of $800 per fortnight by way of spouse maintenance.

91. On 31 May 2012 the husband bought a home with his present partner, Ms L at Property K, via (omitted).

92. Upon the sale of the former matrimonial home the wife has lived with her sister as has the party’s adult daughter and at times Y.

93. The wife is homeless and is living with her sister at her sister’s home and they share a bedroom.

94. The husband lives in a home that he and his partner Ms L own and it is being paid off. Ms L is working part time and earning around $400 gross per week. Her son lives with the husband and his father pays $100 a week towards his support.

95. I accept Ms L made the capital contributions to the initial acquisition of the home.

96. It was contended at the commencement of the hearing by the husband that past contributions of each in the marriage was equal.

97. The wife does not agree. The wife says her entitlement is 65% to all the assets.

98. The wife asserts that the husband’s deteriorating mental, psychological and emotional health, which is clear and apparent from 2003 until separation caused by the stresses of his job and resulting in him being pensioned off as “hurt on duty” made the wife’s parenting and homemaking role more arduous than it needed to be.

99. The wife says not even when the husband was at home and not at work did he assist her in this role other than at a basic level of cooking the occasional barbeque for example. Her evidence is that he made life more difficult for her by his violent reactions at times, by his moodiness and his excessive consumption of alcohol.

100. The wife says she and the children were effectively left to fend for themselves without the assistance of their father and husband.

101. Secondly, the wife says the husband’s rapid rise in the police force was in part made possible by the wife’s commitment to the family and her full-time care of three children. The wife said she moved with him and the children to (omitted) and then to Property B and where his promotions took him.

102. I accept the husband worked long hours. I accept he travelled on many occasions and I accept he attended courses in order to promote his career. That clearly meant the vast majority of parenting and homemaking fell to the wife.

103. That does not diminish the husband’s role as a father and parent, particularly prior to 2003 before he began drinking alcohol to excess, but as night follows day if he is working as hard as he was and then became unable to work due to his poor emotional and psychological functioning he could not have been emotionally or psychologically available to the children or the wife and she carried that burden alone.

104. The next issue is the parties’ percentage entitlement to the current asset pool.

105. Mr Jackson says the husband’s hurt on duty pension is more like a personal injuries claim and that wife has at best a 30% entitlement to that asset although concedes she would likely receive the majority of remaining assets such as the money in trust shares and the like.

106. The wife says her claim to the assets is 65%.

107. Secondly, what is the quantum of maintenance the husband should pay to the wife pending commutation of his pension in 4 years?

108. Looking at the hurt on duty benefit.

109. This benefit consists of 2 parts the fortnightly pension and the lump sum. The fortnightly pension was gross $3,320.23 and is now $2,747.29. The lump sum is $949,061.41 when commuted in 4 years.

110. It was contended by Mr Jackson and relying upon decisions such as Hayton & Bendle[1]; T & T[2] a decision of Watts J; and Crawford & Crawford[3], a decision of Altobelli J of this Court; that the wife’s entitlement to the husband’s pension when commuted in four years and his ongoing fortnightly pension payable to him is at best some 30 per cent. I need no longer consider the issue of the percentage entitlement of the wife to his weekly pension as it is agreed the wife has a claim for maintenance.

     [1] [2010] FamCA 592.

     [2] [2006] FamCA 207.

     [3] [2012] FMCAfam 1315.

1. Mr Jackson says that the husband’s current fortnightly pension and the lump sum he will receive in four years is referable solely to an injury suffered by him such as a personal injuries claim.

2. Secondly, that the wife has made little or no contribution to this pension and lump sum or a minimal contribution and that 30% is her best entitlement.

3. I disagree with Mr Jackson’s analysis of the decision in T & T. The decisions of Crawford and Hayton & Bendle can be distinguished from this matter for the following reasons although I accept there are similarities.

4. None of the spouses in the above matters had a claim to spouse maintenance as each was working, unlike Ms Woodgate.

5. Hayton & Bendle, concerned a judge’s judicial pension. One significant difference in that matter to this is that the parties were seized of valuable matrimonial assets approaching $1.3 to $1.5 million in addition to the husband’s right to a judicial pension.

6. A judicial pension is not the pension or the superannuation benefit that the husband has in this matter. One cannot commute a judicial pension to a lump sum. It can only be received fortnightly or monthly.

7. There is no capacity to commute a judicial pension. The formulas engaged in that matter to do justice and equity between the parties have little or no relevance to this matter where we have both a known commuted pension amount payable in four years.

8. In the matter of Crawford the parties were seized of valuable non-superannuation assets. That matter concerned the wife who was a police officer and had been pensioned off on a hurt on duty basis. Both she and the husband were police officers.

9. In Crawford His Honour found at paragraph 53:

   That in reality the wife’s pension does have some component to it that is not exclusively referable to her injury. To that extent the husband must have contributed to it.

10. His Honour assessed the husband’s contribution to her hurt on duty pension at 18%.

11. In Crawford the wife was 46 and unable to commute her pension until aged 55. In this matter the husband is 51 and will commute his pension in four years.

12. His Honour likened the lump sum component of the wife’s hurt-on-duty pension in Crawford as being compensation for loss of wages. I disagree with that assessment. It is not. The compensation for loss of wages is the weekly or fortnightly pension not the lump sum.

13. The lump sum amount of the hurt on duty pension is referable to the salary level that the serving police officer had attained at the date they were deemed unfit for work but is not based upon a loss of wages. Using the last salary level to calculate this amount is merely the way in which the ultimate lump sum is determined and thus what its value will be. The fortnightly amount is the loss of wages component.

14. His Honour ascribed to the husband in Crawford some 15 per cent of the total asset pool. That may have been a just and equitable decision in that matter given that the husband was working, had his own superannuation entitlements as a police officer and there were valuable assets to divide between the parties in addition to the hurt on duty benefit.

15. That is not the case here. The non-superannuation assets are a mere $57,000 cash and some items of furniture, cars and shares. The wife has no earning capacity, has not exercised an earning capacity for over 25 years and is totally dependent on moneys provided to her by her husband. The wife clearly has a claim for spouse maintenance.

16. There are no matrimonial assets from which I could adjust what would be a significant imbalance in the pool if I followed the decisions of Crawford and Hayton & Bendle and awarded the wife 15 to 30 per cent of a lump sum of almost $1 million.

17. I was also referred to the decision of Coleman J of PJM & STM[4] in support of the husband’s contention that the wife’s entitlement to the lump sum was mere 20% to 30%. That matter concerned the husband’s (omitted) superannuation entitlements.

    [4] (2005) FLC 93-242.

18. However that decision is distinguishable on the facts. His Honour could not determine the lump sum payment to which the husband would be entitled in the future. His Honour did not deal with the contributions of the wife to this ultimate benefit in contrast to Justice Watts in T & T.

19. As I said initially I disagree with Mr Jackson’s analysis of the decision of Watts J in T & T, which again, is a case concerning a hurt on duty pension of a police officer. The facts in T& T are very similar to the facts before me, save for the following.

20. Mr T was not intending to commute his pension to a lump sum at age 55.

21. Mr T intended to continue to receive a pension up to the maximum age of 60.

22. Mr T was younger than Mr Woodgate.

23. The parties had other significant assets, some $539,000. Here it is $57,000 or 10% of that amount.

24. It was a marriage of 17 years. This is a marriage of 25 years.

25. The similarities are these.

26. The wife had followed the husband and assisted in his somewhat meteoric rise through the ranks. Mr T had achieved the rank of an Inspector of police. At paragraph 68 His Honour found:

    The wife gave up her employment and wish for a home so that the husband could pursue his meteoric rise in the police force.

27. Mr T was in good health and earning $126,000 a year, together with his pension.

28. I accept Mr Woodgate is not in good health, however like Mr T he is working in addition to receiving his pension. Mr Woodgate was working full-time up to the end of May 2014 and for reasons, that are not clear to me on the evidence other than that he does not want to work full time, of his own election he determined to work part time. The reduction in his incapacity to work by the Police Superannuation Advisory Committee set out in the letter of 2 September 2014 from 90% to 74.34% does not help explain his decision to go to part time work, rather that his capacity for full time work is greater than now than it was in the past.

29. There is no medical reason he cannot continue to work full time in his job. He has a clearly demonstrated income earning capacity despite his ill health. Ms Woodgate has no such capacity.

30. At paragraph 88 His Honour found that it was an agreed fact during the course of the relationship the wife was the primary carer of the children and was the person who primarily fulfilled the role of homemaker. This is the case here.

31. His Honour then went on to describe the particular superannuation interests of the parties as being under the Act another species of asset. His Honour says at paragraph 91:

    The husband has an interest in the (omitted) ... Fund under the Police Regulation Superannuation Act 1906 PRSA, which is in the payment phase.

32. This is so for Mr Woodgate. Commencing at Paragraph 94 his Honour said

    The husband’s superannuation interest can be categorised as having two elements;

    Category 1, a non-commutable indexed pension to age 60 with a partial right to commute at age 55.

    Category 2, a commutable indexed life pension after the age of 60.

    The two categories of interest are different.

33. At paragraph 99:

    The Family Law Superannuation Regulations do not contain a method for valuing a pension interest in the payment phase that can be commuted to a lump sum at a later date.

    This is the nature of Mr Woodgate’s superannuation and/or pension entitlement.

34. Paragraph 100:

    Section 90MT(2)(b) of the Family Law Act provides where the FLSR regulations do not provide a methodology the court determines the value of an interest by such method as it considers appropriate.

35. I am only dealing with the category 2 aspect of the husband’s entitlement as each party agrees the wife has a claim for spouse maintenance.

36. I have accepted the valuation of the husband’s commutable interest at age 55 as set out in Wife’s Exhibit 2, agreed by the husband to be a net sum of $949,061.41.

37. His Honour went on to say:

    There are issues certainly arising from Coghlan & Coghlan (2005) FLC 93/220, which was not determined in that decision by the majority but was by O’Ryan J, who found that a pension was property for the purposes of a superannuation interest under the Act. The majority determined that question was not asked and they did not determine it, but it can either be property, an asset or a financial resource.

38. At paragraph 107 His Honour says:

    Both O’Ryan J and Watts J and Coleman J, writing ex judicially agreed with O’Ryan J that when one looks at the definition under section 4 of property within the meaning of the definition of property, a pension in the payment phase could be determined as property under the Family Law Act.

39. At paragraph 118 of His Honour’s judgment he analyses the husband’s hurt on duty benefit under category 1 the fortnightly pension under the Heading Nature, Form and Characteristics of the Husband’s Category 1 Superannuation Interest. His Honour says:

    The husband presently receives a superannuation interest by way of a fortnightly pension.

    The reason he receives it now rather than at a normal retirement age is because he was hurt on duty.

40. His Honour found at paragraph 122:

    The husband’s entitlement both before he was hurt on duty and now are in accordance with the Police Regulation Superannuation Act 1906 PRSA.

    The husband may at some future time be required to submit to a medical examination. If it is found his incapacity has ceased the Police service may offer the husband the opportunity of returning to some position..... If that happened the superannuation he currently receives and will receive until normal retirement age will be cancelled and he again will receive his former salary.

    Given that the husband can retain entirely the payment of the superannuation interest --- and at the same time seek other gainful employment without losing the payment ----This is not a feature of most income protection insurance products.

41. I refer to this analysis only to dispel Mr Jackson’s submission that the husband’s hurt on duty benefit was like an insurance policy and this submission cannot be sustained. It has some features of an insurance policy but is a very different benefit or resource.

42. Going now to the analysis of the category 2 benefit, the commutable lump sum which commences at paragraph 126 of His Honour’s judgment. His Honour found in paragraph 127:

    The husband’s entitlements prior to his hurt on duty was a superannuation allowance pursuant to the provisions of section 7 of the PRSA ---- and became an entitlement to him once he had served 20 years in the Police Force

43. Mr Woodgate had served 22 years in the police force when he was assessed to have been hurt on duty. Thus at the date of being determined to be hurt on duty Mr Woodgate had a right to a superannuation allowance pursuant to section 7 of the PRSA. The wife had made a contribution to that benefit.

44. I have not been provided with the value of the husband’s superannuation entitlement as at the date just prior to him being determined to be hurt on duty. I can only assume he took the hurt on duty option as that was more financially favourable to him, but I can make no finding on that issue.

45. His Honour goes on to say in paragraph 127:

    Upon retirement or discharge the annual superannuation allowance is calculated by multiplying the member’s salary of office at the date of his retirement with a service ratio calculated upon completed years of both full time and part time service.

46. At paragraph 129 of His Honour’s judgment His Honour states when Mr T became hurt on duty his regular entitlement under section 7 of the PRSA ceased and section 10 of the PRSA then governed his entitlement. This is the case for Mr Woodgate.

47. Mr Woodgate would not be able to commute his superannuation to a lump sum at age 55 under section 7 of the PRSA. It is only because he has been determined to be hurt on duty that he can do so.

48. I further disagree with Mr Jackson that a hurt on duty benefit is like a personal injury claim and therefore personal to he or she who obtains same. It is not. It is a right related to employment, years of service, final salary level and the nature of the injury.

49. Clearly it is an entitlement arising out of employment not a common law right of the average citizen provided they can establish negligence was the reason for their injury. The only commonality is the word “injury” between these 2 very different rights.

50. Being a right of employment for an injured worker it is clearly a benefit towards which a non-injured spouse such as Mrs T and Ms Woodgate has made a contribution.

51. Secondly, in both T & T and this case whether the husbands were deemed hurt on duty or not they had each acquired superannuation benefits to which their spouse had contributed towards during the relationship and prior to the hurt on duty determination.

52. It would be inequitable and manifestly unjust to then minimise the contribution made by a spouse such as Ms Woodgate in a 28 year marriage to a mere 30 percent because the name of the husband’s lump sum benefit had changed to “hurt on duty” from “superannuation”.

53. At paragraph 132 His Honour says:

    After the husband was deemed hurt on duty the superannuation allowance to which he was entitled after 60 changed from a defined benefit in the growth phase to a defined benefit in the payment phase. Also rather than it being calculated by way of applying a multiple based on completed years or service to the attributed salary it was calculated by way of applying a multiple of 10.92 times the indexed pension.

54. This is not applicable to Mr Woodgate as he is commuting at age 55 and not after age 60.

55. At paragraph 149, His Honour commences his analysis of contributions by the wife to the lump sum component of the hurt on duty benefit and refers to the decision of Bailey v Bailey[5] a Full Court decision:

    Contribution by one spouse to superannuation usually means the loss of moneys available for the current support of the family -----Loss of the right to share in the superannuation by a divorced non superannuated spouse is an important financial consequence of the dissolution of the marriage.

    [5] (1978) FLC 90-424.

56. This is a relevant factor in this matter and a most significant difference to the facts in T & T in that his Honour found at paragraph 141:

    The wife cannot claim any direct contribution following the husband being hurt on duty. As counsel for the husband pointed out the parties were not together at the time. The wife has not nursed or attended to the husband in any way as a result of the injuries.

57. Paragraph 142:

    The wife has made contributions after separation in the role of parent to two children. He is a good father, but I find her role would have increased to some degree because of his injuries. The wife can point to contribution she made that is relevant to the amount of the husband’s salary at the date of discharge.

58. In this matter the wife was with the husband from 2003 when he began to have real difficulties with his work and for 3 years after he was determined to be hurt on duty being from 2007 to separation in 2010.

59. I accept Ms Woodgate did not attend medical appointments with her husband. Ms Woodgate’s evidence was that he would not let her do so. However she cooked, shopped, cleaned, ironed and washed for him, kept the home and cared for the children whilst he was suffering from his work related injuries in circumstances where her own health was not robust.

60. Ms Woodgate has made a significant contribution to the care of the husband prior to and post his being determined to be hurt on duty. This is a significant difference to the factual matrix in T & T.

61. His Honour goes on to say at paragraph 144:

    It is clear that the wife supported the husband in applying for promotions and relocating herself and the children to facilitate his promotions.

    The increased responsibility the husband had as a result of his promotions placed additional burdens on the wife during the marriage, and particularly when the children were young.

62. These are the same facts as for Ms Woodgate.

63. In T & T the facts were that Mr T had been in his fund for 23 years, the parties were married for 10.

64. A significant difference in assessing the parties contribution based entitlement to the husband’s lump sum component of his hurt on duty pension in this matter to T & T’s case is that Mr and Ms Woodgate were married and together for the entirety of the time the husband contributed to his superannuation fund as well as post his determination of being hurt on duty.

65. I need not look at the issues His Honour did in T & T of a superior or a different contribution by the husband and wife to the lump sum component.

66. In this matter the parties worked together to achieve what they have today. The wife was living with her husband and supporting him and their family for the entire time of his work in the police force and for three years after he was retired as hurt on duty.

67. In T & T’s case His Honour found that:

    The wife’s contributions to the husband’s category 2 superannuation were 40 per cent.

68. I do not accept that there has been an equal contribution by these parties to their assets. The wife’s parent and homemaking role is superior to the husband’s income earning role and I assess the party’s contribution in the past to their current assets having regard to all the factors as 55% to the wife and 45% to the husband.

69. Following the decision of Watts J in T & T and my analysis of the nature of Mr Woodgate’s hurt on duty pension and the wife’s contribution to that benefit I find I am able to exercise my discretion to award the wife 55% of the husband’s hurt on duty benefit.

70. The determination now is whether I ought to adjust that contribution up or down having regard to the parties’ future needs.

71. I must now determine the wife’s spouse maintenance claim prior to any determination under section 75(2) of the Act that the party’s contribution based entitlement to their current assets ought to be adjusted due to their future needs.

72. The husband has a pension to age 55 and is working. He has determined to work part time but clearly has a capacity for full time employment. I am not satisfied he will lose his job or that he cannot maintain full time employment even with his health issues which I accept.

73. His partner is working part time and made a significant capital contribution to the purchase of their home outside of (omitted) which they are paying off. The husband has no obligation to support his partner’s son who has a mother and father to support him.

74. The wife’s position is vastly different and quite straitened. Her only income is the $400 a week her husband pays her. She has no partner, no home to live in or which she is paying off and is living on the charity of her sister and sharing a bedroom with her.

75. The wife wishes to provide a home for her adult children which although laudable is not necessary and I find that her adult working children are a financial resource available to her should she determine to rent a property to accommodate her children.

76. Having said that and having regard to the standard of living enjoyed during the marriage I do not see the wife should be living in a one bedroom home and I find at minimum she is entitled to rent a 2 bedroom property.  

77. Going to the party’s financial statements.

78. The wife lives modestly. Her expenses set out in her financial statement dated 25 June 2014 are $508 a week. There is no allowance for rent, private health insurance or the medical expenses set out in her affidavit filed 18 August 2014 for osteopathic treatment weekly of $70, or medication for pain and inflammation $30. Adding those costs up totals $608 per week.

79. The minimum rent the wife would be required to pay is $360 a week for a 2 bedroom townhouse or $445 for a 3 bedroom townhouse.

80. The wife’s weekly needs are modest and at minimum total $968 or the $1,000 a week the wife is claiming.

81. I find $1,000 a week to be the wife’s reasonable needs until she receives her share of the husband’s lump sum entitlement.

82. The question is now what is the husband’s capacity to pay the wife’s reasonable needs?

83. Going to his financial statement dated 14 June 2014 and the additional documents now included in Husband’s Exhibit 1 tendered at the re-opening on 15 September 2014.

1. The husband’s personal needs are asserted at $889 a week. I will reduce that by $70 for education expenses which relate to his partner’s son and food costs to $150 as that cost is now shared with Ms L. I accept his costs are greater than the wife’s as he has fuel to and from work, clothes dry cleaning and the like.

2. I find the husbands reasonable personal needs to be $669 a week.

3. Going to his fixed costs.

4. His net weekly income is now $1,850 or thereabouts and not $2,338 as disclosed in his financial statement.

5. The husband claims the full costs of the mortgage payments for his and Ms L’s home of $625 a week.

6. It is clear Ms L made the substantial capital contribution to the acquisition of the home however they both reside in the home and I find it appropriate that they share the mortgage costs. I will allow the husband 70% of the mortgage and rates which amounts to $469.50 weekly.

7. Similarly with insurance of $20 for the home and contents I will allow $14.

8. I will not allow health insurance as necessary in circumstances where the wife is unable to pay such a levy although she wishes to do so.

9. Car registration and the like $27 and master card payment $50 is allowed.

10. I assess the husband’s fixed costs at $560.50 and discretionary costs of $669 weekly totalling $1,160.60 weekly.

11. The husband’s total reasonable costs to support himself are assessed by me at $1,160.60 or rounded up $1,161 a week.

12. The husband’s net weekly income is $1,850. This gives him a surplus of income over expenses of $689 whilst he works part time.

13. Although the wife has a need for maintenance of $1,000 per week I find the husband has capacity to pay $680 per week until such time as his pension is commuted and I will so order.

14. I must now consider whether I ought to adjust what I have found to be her percentage based entitlement to the assets which was 55%.

15. The wife will receive a level of support from the husband for the next 4 years however it is some 30% less than I have assessed are her reasonable needs.

16. In 4 years when the lump sum becomes available the wife will receive 10% more than the husband who may still have a capacity for work as I find he has a capacity for full time work currently.

17. The husband has the support of his partner Ms L in contrast to the wife.

18. Further while he continues to work he will increase his superannuation which is currently valued at $33,016.

19. In addition he has an interest in his and Ms L’s home and will receive sufficient monies in 4 years to discharge the current mortgage on the home. His current interest in his home I have assessed to be $42,000 being a 50% of the value of $450,000 less the mortgage of $366,000.

20. None of the above assets or resources is available to the wife who will have to solely re-house herself in 4 years from her entitlement to the lump sum.

21. For those reasons I find the wife should receive an additional 2% of the assets bringing her entitlement to 57% and the husband 43%.

22. What does this determination mean by way of a cash adjustment now and into the future?

23. The parties assets and liabilities from the balance sheet are as follows.

ASSETS
Husband's (omitted) Super shares	$3,359
Husband's Ford	$8,000
Wife's Ford	$4,000
Joint trust monies	$57,498
Husband’s interest in Property K	$242,000
Husband's (omitted) Bank Account No. (omitted).	$860
Husband's (omitted) Bank Account No. (omitted).	$200
Wife's (omitted) Bank Account No. (omitted).	$100
Husband’s furniture	$1,000
Wife’s furniture	$5,000
Husband's (omitted) superannuation	$949,061
Husband's (employer omitted) superannuation	$33,016
TOTAL	$1,304,094
LIABILITIES
Mortgage on Property K	$183,300
Husband's (omitted) Bank Mastercard	$300
Husband's (omitted) Bank Personal Loan	$2,158
TOTAL	$185,758
NET ASSETS INCLUDING SUPERANNUTATION	$1,118,336

1. I have not included the party’s furniture in the pool as they have the same value.

2. The remaining assets the parties have such as money in the bank is not a matrimonial asset for division rather the parties own property and is of small compass.

3. The husband’s interest in Property K and his superannuation are not matrimonial assets, rather financial resources available to the husband and not the wife.

4. I find the matrimonial assets for division are as follows.

ASSET
Husband's (omitted) Super shares	$3,359
Husband's Ford	$8,000
Wife's Ford	$4,000
Joint trust monies	$57,498
(omitted) superannuation	$949,061
TOTAL	$1,021,918

1. On a division of 57% to the wife and 43% to the husband this would result in the wife receiving $582,493 and the husband $439,424.

2. The holding of the currently available assets for division are as follows:

ASSET
Husband's (omitted) Super shares	$3,359
Husband's Ford	$8,000
Wife's Ford	$4,000
Joint trust monies	$57,498
TOTAL	$72,857

1. I will divide the assets now available 57/43.

2. 57% of $72,857 is $41,528 of which the wife has $4,000 in the value of her car. The wife’s entitlement is then $37,528 to the monies in trust and the husband’s $19,970 of the monies held in trust and otherwise he keeps his assets.  

3. Upon the husband commuting his pension the wife is to receive $540,954 of that commuted amount with the balance of $408,096 to the husband. The husband will have in addition to this lump sum the then value of his interest in his home together with superannuation he has accumulated due to his employment none of which will be available to the wife.

4. Additionally the husband has the option to resume full time employment not an option available to the wife.

5. I find these orders to be just and equitable in all the circumstances.

I certify that the preceding two hundred and twenty-seven (227) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Associate:  

Date:  30 October 2014