Family Court of Australia

M & M	[2006] FamCA 913	
	
FAMILY LAW– APPEAL– PROPERTY – Whether the trial Judge erred in determining the property available for distribution between the parties by excluding the balance of funds received by the husband on the termination of his employment and an alleged beneficial interest in a property purchased by the husband with his brother and sister-in-law and by including legal fees paid by the wife apparently from post separation income.
FAMILY LAW – APPEAL – PROPERTY – CONTRIBUTIONS – Whether the trial Judge erred in assessing the contributions of the parties.
FAMILY LAW APPEAL – PROPERTY – FUTURE NEEDS – Whether the trial Judge erred in assessing the future needs of the parties.
FAMILY LAW – APPEAL – PROPERTY – SUPERANNUATION – Whether the trial Judge erred in his approach to an interest by the husband in the SAS Trustee Corporation Pooled Fund under the Police Regulation (Superannuation) Act 1906 by taking an asset by asset approach and accordingly treating the husband’s State Superannuation entitlements differently from the other assets – Whether the trial Judge gave sufficient weight to contributions made by the wife to the husband’s State Superannuation interest – Discussion of ‘West and Green’ formula.
FAMILY LAW – PRACTICE AND PROCEDURE – Application by the husband to adduce further evidence.

Family Law Act 1975

BAR & JMR (2005) FLC 93-231
Cahill & Cahill (2006) FLC 93-253
Coghlan and Coghlan (2005) FLC 93-220
C and M [2003] FamCA 1204
Clauson and Clauson (1995) FLC 92-595
Harrison and Harrison (1996) FLC 92-682
Pastrikos (1980) FLC 90-897
Pierce and Pierce (1999) FLC 92-844
Trott and Trott (2006) FLC 93-263
Webber and Webber (1985) FLC 90-648 
West and Green (1993) FLC 92-395

Appellant:	M	
Respondent:	M	
File Number:	PAF 1488 of 2003	
Appeal Number:	EA 54 of 2005	

Date Delivered:	20 September 2006	

Place Delivered:	Canberra	
Judgment of:	Bryant CJ, Finn and Boland JJ	
Hearing date:	23 September 2005	
Lower court jurisdiction:	Family Court of Australia	
lower court judgment date:	22 April 2005	

COUNSEL FOR THE appellant:
solicitor FOR THE APPELLANT:	
Mr Connor
Mark Brown & Associates	
COUNSEL FOR THE RESPONDENT:	Mr Batey	
SOLICITOR FOR THE RESPONDENT:	Abbott Tout
	
Orders
1.	That the appeal be allowed.
2.	That by consent the further evidence contained in the affidavit of Ms L filed 14 June 2006 and the affidavit of the husband filed 27 June 2006 be admitted.
3.	That Order 1 of the orders made on 22 April 2005 be set aside and in its place the following order be made:
	‘1.	Within 14 days of the date of these orders the husband shall transfer to the wife the whole of his right, title and interest in the former matrimonial home and the wife shall indemnify the husband in respect of all liability with respect to the said property.’
4.	That each party be at liberty to file and serve any written submissions in relation to the costs of the appeal within 28 days of the date of these orders. 
5.	That each party have a further 28 days in which to file and serve any written submissions in answer to any submissions filed by the other party.
6.		That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

FAMILY COURT OF AUSTRALIA AT PARRAMATTA	

APPEAL NUMBER: 	EA 54 of 2005	

FILE NUMBER:		PAF 1488 of 2003 			

M	

Appellant Wife

And

M	

Respondent Husband

REASONS FOR JUDGMENT
introduction
1.	This is an appeal by the wife against orders made by Coleman J on 22 April 2005 which essentially provided for the husband to transfer to the wife his interest in the former matrimonial home on payment by the wife to the husband of the sum of $98,205.21.
2.	The effect of this order was to divide the net value ($488,752) of the assets of the parties other than a superannuation interest of the husband which had been valued at $1,081,726 in the proportions of 52.5 per cent - 47.5 per cent in favour of the wife.
3.	Importantly, for the purposes of this appeal, his Honour declined to make a splitting order in favour of the wife in relation to the husband’s superannuation interest valued at $1,081,726.  This interest was an interest in the SAS Trustee Corporation Pooled Fund under the Police Regulation (Superannuation) Act 1906 (NSW).  (We will refer to that interest as ‘the State Superannuation interest’ or ‘the State Superannuation entitlement’ as the context requires).
factual background
4.	The following is the factual background as found by the trial Judge (in paragraphs 11 to 23 of his judgment) and as it is relevant to this appeal.
5.	The husband was born in 1965 and the wife was born in 1968.
6.	In May 1984 the husband joined the New South Wales Police Force and entered the contributory superannuation fund for the Police Force.
7.	The parties married and commenced cohabitation in January 1989.  Their first child was born in 1990, their second child in 1992, and their third child in 1996. 
8.	After the parties married, they purchased their first home for approximately $73,000 with the assistance of a credit union loan.  
9.	Subsequent to marriage, the husband continued to be employed (full-time) by the Police Force until he was medically discharged from the Police Force in January 2004.  The wife had employment subsequent to marriage, although her employment was disrupted by the births of the three children and was essentially part time subsequent to the birth of the first child. 
10.	In about June 1992 the parties sold their first home for $125,000 and purchased the property which became their final and ‘former’ matrimonial home for $201,000, using the net proceeds of sale of the first home and a loan. 
11.	The parties separated in June 2001, at which time the husband vacated the former matrimonial home.  
12.	In November 2002 a property in South-West Sydney was purchased by the husband as to 50 per cent and by his brother and sister in law as to the remaining 50 per cent.  
13.	In January 2004 the husband was medically discharged from the Police Force as a result of a post traumatic stress disorder condition.  The husband commenced to receive a fortnightly pension of approximately $1,900.00.   
14.	Upon termination of his employment with the Police Force, the husband received $29,840.29 by way of long service leave, together with a sum of $25,950.00 from his State Superannuation fund representing his “basic benefit”.
15.	In the post separation period the wife and children occupied the former matrimonial home to the exclusion of the husband.  The husband has paid child support as from time to time assessed by the Child Support Agency during the post separation period.  The wife has paid the mortgage and other outgoings on the property.  The wife has had employment during the post separation period, including full-time employment during 2004.
16.	The wife was due to give birth to the child of her relationship with a Mr W in late February 2005.  
the scope of the appeal
17.	The wife’s grounds of appeal are directed to:
•	the identification by the trial Judge of the pool of property available for distribution between the parties (Grounds 1 – 4);
•	the assessment by the trial Judge of the parties’ contributions (Ground 5);
•	the assessment by the trial Judge of the relevant s 75(2) matters (Ground 6);
•	the adequacy of the trial Judge’s reasons in relation to the parties’ contributions and the s 75(2) matters (Ground 8);
•	the approach by the trial Judge to the husband’s superannuation pension entitlements in circumstances in which the wife had (unsuccessfully) sought a splitting order (Ground 7);
•	the alleged failure by the trial Judge to consider whether the orders were just and equitable (Ground 9); and
•	the question of the overall justice of the orders and whether they were within ‘the reasonable ambit of the Court’s discretion’ (Ground 10).
18.	It will thus be seen that the appeal is concerned with all aspects, or stages, of the exercise by the trial Judge of the discretion to make a property settlement order.  In these circumstances it will be convenient to explain each aspect, or stage, of the exercise of the discretion by the trial Judge in the context of considering the relevant grounds of appeal.
the identification by the trial judge of the pool of property available for distribution between the parties
19.	The trial Judge summarised his conclusions as to the items to be included in the pool of property available for distribution between the parties in the following table (appearing at paragraph 42 of his judgment):

Assets of the parties	Husband	Wife	
[Former matrimonial home]		$510,000	
Credit Union account	$5,600		
Furniture & household effects	$10,000	$10,000	
Legal fees	$30,000	$10,000	
Motor vehicle		$15,250	
Bank account		$1,000	
Superannuation 
-	MLC
-	State Super	
$8,352
$1,081,726	$7,993	
			
Liabilities			
Mortgage – [former matrimonial home]		-$119,442. 97	
			
Total net assets	$1,135,678	$434,800	
Total joint net assets	$1,570,478		

20.	The wife’s first ground of appeal is directed to his Honour’s inclusion in the pool of the sum of $10,000 on account of the legal fees paid by her and to his exclusion from the pool of a sum of $16,000 which was said to represent the balance of funds received by the husband on the termination of his employment with the Police Force.
21.	It will be convenient to consider first the issue of the exclusion from the pool of the balance of the husband’s termination payment.
balance of the husband’s termination payment
22.	The precise terms of the wife’s complaint in Ground 1 concerning the exclusion from the pool of the balance of the husband’s termination payment, is that his Honour erred in failing:
‘ii.	… to include the balance of the funds received by [the husband] upon termination of his employment in the sum of $16,000;
	and failed to give appropriate reasons for [that determination].’
23.	Early in his judgment his Honour referred to the fact that there was a dispute between the parties as to:
‘7.	… the extent, if any, to which monies obtained by the husband upon termination of his employment by the New South Wales Police Force on medical grounds should, notionally or otherwise, be included in the inventory of assets of the parties to the marriage.  Such payments totalled approximately $56,000.00.’
24.	Later when recording the factual background, his Honour referred again to the termination monies received by the husband in the following way:
‘21.	On 13 January 2004 the husband was medically discharged from the NSW Police Force as a result of a post traumatic stress disorder condition from which he suffers. … Upon termination of his employment from the NSW Police Force, the husband received $29,840.29 by way of long service leave, together with a sum of $25,950.00 from State Super representing his “basic benefit”.’
25.	It will be seen that the long service leave payment and the basic benefit totalled approximately $56,000 (which was the figure which his Honour had referred to in earlier in his judgment).
26.	Then in recording the husband’s evidence as to how he had spent these amounts totalling approximately $56,000, and in reaching his conclusion as to how he proposed to treat these amounts, his Honour said (emphasis added):
‘26.	The husband gave evidence that he has approximately $5,600.00 in a Credit Union account.  The husband further gave evidence that he has spent in excess of $10,000.00 on furniture and household effects which he currently has.  These monies derived from the funds the husband received on termination of his employment with the NSW Police Force.  
27.	It was submitted in relation to the husband’s long service leave and basic benefit superannuation amounts, that such sums should not be written back into the asset pool.  There is no issue that the husband had paid legal costs of $29,228.94, which the husband suggested he obtained from the $55,790.64 paid to him as long service leave and basic benefit superannuation.  
28.	Whilst it may be that the benefits which “crystallised” after separation did not exist until that event, the entitlements which gave rise to such funds becoming available, accrued during the cohabitation of the parties.  Each case turns on its own facts and circumstances.  None of the matters relied upon by the husband militates against writing back the husband’s paid legal fees as the Court proposes.  The balance of the monies, to the extent that they represent living expenses drawn by the husband will not be written back, whilst such funds as were applied with respect to furniture or the like are presumably included within the furniture which the husband has retained.
29.	Whilst the husband’s employment with the Police Force pre-dated the marriage by some five years, there is no reliable evidence before this Court as to the value, if any, of his entitlements in relation to long service leave and/or of the “basic benefit” at the date of marriage.  In the absence of cogent reasons for doing so, there is little foundation for doing other than regarding the $56,000.00 which the husband received on termination of his employment by the Police Force as having been other than accumulated during the course of the marriage, albeit the parties had been separated for three years at the time the payment materialised.
30.	As such, of the $56,000.00, $10,000.00 in respect of personal property which the husband has purchased and approximately $30,000.00 which the evidence reveals to have been applied to the payment of legal fees from such monies, and the Credit Union account are appropriate to be included in the inventory of assets of the parties.  The balance of $56,000.00 is not proposed to be included.’ 
27.	On a reading of paragraph 30 of his Honour’s judgment, the ‘balance of $56,000.00’ would be the difference between that sum and the total of the credit union deposit of $5,600, the husband’s furniture valued at $10,000 and his paid legal fees of $30,000.  That difference would be a figure of just over $10,000.  However, the wife asserts that the balance figure should be $16,000.  We can only assume that she or her advisers have overlooked the credit union deposit of $5,600.  But given the view which we ultimately take of this matter, it does not matter what the exact amount of the balance is.
28.	It was submitted on behalf of the wife that because his Honour found (in paragraphs 26 and 29) that the entitlements, which resulted in the husband receiving funds in the order of $56,000, had accrued during the parties’ cohabitation, then it was not open to his Honour to do anything other than add back not only the amount spent by the husband on legal fees ($30,000), furniture ($10,000), and deposited in the credit union account ($5,600), but also the balance of those funds.  It was further submitted that his Honour had erred in failing to explain his reasoning for excluding that balance.
29.	However, it is clear to us from what his Honour said in paragraph 28 of his judgment that he did not include the balance amount of $56,000 because it had been spent on living expenses.  There was certainly evidence from the husband given under cross-examination which would support a finding that the balance of the termination monies had been spent on living expenses (see Transcript: 2 June 2005 at pg 70, quoted below), and the authorities make it clear that monies existing at separation which are used to fund reasonable living expenses post separation should not be notionally added back to the pool (see the observations of the Full Court in C and C [1998] FamCA 143 and M and M [1998] FamCA 42 cited in Chorn and Hopkins (2004) FLC 93-204 at paragraph 24).
30.	We understood Counsel for the wife to endeavour to establish before us that the expenditure by the husband of the amounts in question on living expenses was not reasonable given that the husband was in receipt of a pension of $1,900 per week.  However, it seems clear that his Honour considered the expenditure reasonable and that he would have done so in light of the following evidence from the husband (Transcript: 2 June 2005, pg 70):  
‘In respect of their financial support, you would say that you’ve done what’s best, that is, you’ve paid whatever the child support was? --- Of course.
But you’ve not paid anything over and above that, have you? --- Yes.
What? --- If I get a notice on the 29th of one month that says, “… you only pay 1,070,” and I’ve already paid $1300, I don’t hit [the wife] up for the money because I know it goes towards the kids, so.
Right, but when you’re advised that it had been reduced from $1600, and I think it’s now approximately $900 a month, is that correct? --- 831 or something.
831, and you’ve not offered to continue to pay the 1600, have you? --- I don’t know the implications of it all – I can’t physically pay $1600.
I’m suggesting to you, sir, that you had no need to dip into your funds that you received that were in the bank, such as the $29,000 from long service leave and the $29,000 basic benefit, you have [sic] no need to dip into that to supplement your day to day living, did you, when you were paying 1600 a month, that is, you managed? --- Well, not really.
Apart from --- ? --- Are you saying could I manage now or was I managing then?  Just take the money out of the bank and pay it.
Apart from purchasing the car, sir, you didn’t seem to go backwards or go into debt other than for buying capital items such as furniture and furnishings and/or paying your legal bills? --- That’s probably not true.
That’s what your financial documents seem to suggest, that is, you’ve coped paying the $1600 per month child support with you own day to day living expenses without going into debt? --- That’s not true because I was dipping into my savings.
Sir, the only savings that I could see that you have is the 29 from long service, 29 from basic benefit, and you’ve explained how you’ve spent those? --- Yes, but when I’m saying day to day living expenses, it was there to be used so I used it.  I don’t really know what you mean.
HIS HONOUR:  Mr Batey, I see the time.
MR BATEY:	Thank you your Honour.
HIS HONOUR:  You’re about to go on to something else?
MR BATEY:  I’ve completed it.’ 
31.	 We thus consider that there is no substance in the complaint contained in Ground 1 concerning the balance of the husband’s termination payment.
the legal fees paid by the wife
32.	The precise terms of the wife’s complaint in Ground 1 concerning the inclusion in the pool of her legal fees, are that his Honour erred in:
‘i.	including … the sum of $10,000 paid by the [the wife] on account of legal fees from her post-separation earnings;
			…
and failed to give appropriate reasons for the determinations arrived at in relation to the same.’
33.	In the course of his Honour’s discussion (in paragraphs 6 to 63 of his judgment) of what he referred to as the quantification of the property of the parties, his Honour made the following observations concerning the legal fees which the wife had paid apparently out of post separation income:
‘35.	It was submitted on behalf of the wife that the Court would not, pursuant to the decision in Farnell v Farnell (1996) FLC 92-681 add back the wife’s paid legal fees on the basis that such fees “had been paid from post separation income” whereas those paid by the husband had, the evidence reveals, been paid from funds which had accumulated substantially during the parties’ cohabitation. 
36.	The unreported decision of Chorn v Hopkins (unreported, Finn, Kay & May JJ, 9 July 2003) was relied upon in support of the approach advanced on behalf of the wife. Whilst there may be cases where this approach is to be preferred, including the wife’s paid legal fees as an asset, is considered the course more conducive to a just and equitable determination in the circumstances of this case. The post separation period contributions need to be evaluated and in that context these kinds of factors can be considered.  
37.	The wife has paid legal fees of $10,000.00.   It is appropriate to include this sum.’   
34.	It would thus appear that his Honour proposed to include in the pool of property available for distribution between the parties, the sum of $10,000 on account of legal fees paid by the wife apparently out of post separation income on the basis that he would take this matter into account in his consideration of the post separation contributions of the parties.
35.	When he came to consider those contributions, his Honour made reference to the wife’s paid legal fees, saying as follows:
‘68.	In the post separation period, the husband has had the benefit of approximately $26,000.00 ($56,000.00 - $30,000.00) from an entitlement (through his employment) which largely, if not entirely, accumulated during the course of cohabitation.   $15,600.00 of that sum is reflected in the current assets of the parties.  In the same period the husband has paid child support whilst the wife has paid the outgoings on the matrimonial home, albeit the wife has had the benefit of occupancy of the home to the exclusion of the husband.  In cross-examination the husband fairly conceded that the wife’s contributions to the welfare of the children in the post separation period exceeded his own.  In addition the wife paid $10,000.00 in legal fees which reduced her available income.  The sum is included in the net tangible asset pool.’
36.	The essential argument put on behalf of the wife in support of her complaint that his Honour erred in including her paid legal fees in “the pool”, was that his Honour gave no reasons for adopting this approach.
37.	We do not consider that this is an entirely fair criticism of his Honour, given that it is clear, in our view, from paragraphs 36 and 68 of his judgment that he proposed to include the sum paid by the wife on account of legal fees in the pool of property, but then give the wife credit for that sum in his assessment of the parties’ post separation contributions.
38.	We accept that this course was open to his Honour.  But we consider, with respect, that it was an unsafe course for the reason that, unless an asset by asset approach is adopted for the assessment of contributions (which was not done in this case other than in relation to the superannuation interests), it is virtually impossible for the reader of the judgment to be confident that due credit has been given in the overall assessment of post separation contributions for the sum in question which has been paid out of post separation earnings.  This is the flaw which we consider exists in the present case in his Honour’s approach and reasoning.
39.	It will be seen that in paragraph 68, in the context of identifying the post separation contributions of the parties, his Honour referred to the legal fees paid by the wife as being a matter which had reduced her available income.  However, when his Honour then turned in paragraph 74 to an assessment of the post separation contributions of the parties, it is not clear that credit was given to the wife for her “contribution” to her legal fees from her post separation earnings since there is no express mention of that matter in that paragraph:
‘74.	A modest adjustment to the wife’s contribution entitlement is appropriate in light of the evidence with respect to the post separation period.   The burden of caring and providing for the children fell somewhat more on her than on the husband during that period.  No adjustment for the period of cohabitation is warranted.  A reflection of contributions to this group of assets of 52.5 per cent to the wife and 47.5 per cent to the husband would in the Court’s view be a tangible but not disproportionate reflection of the post separation factors to which reference has been made.  These observations and conclusions are confined to the assets of the parties other than the husband’s State Super entitlements.’  
40.	When paragraph 74 is read in conjunction with paragraph 68 of his Honour’s judgment, it can perhaps be speculated that what his Honour was saying was that the wife’s post separation financial contributions to the children were in some way more burdensome, and hence deserved greater recognition, because she also had to pay her legal fees out of income which would otherwise be available for the support of the children.
41.	But this is only speculation, with it being impossible for us to be certain that credit was given to the wife for payment of her legal fees out of her post separation earnings.  Ultimately, therefore, the wife’s challenge based on the adequacy of his Honour’s reasoning in relation to her paid legal fees must succeed.
42.	The position of the husband in relation to the wife’s complaints regarding his Honour’s treatment of her paid legal fees was, as we understood it, that the evidence from the wife concerning her post separation income, and thus concerning the payment of her legal fees out of such income, was unsatisfactory and could not be accepted; and thus her paid legal fees should be included in the pool (as it could not be established that they had come from post separation income).
43.	Whatever may have been the state of other evidence from the wife, the following passage from her cross-examination, clearly establishes that her evidence was that her legal fees had been paid from her post separation income (Transcript: 2 June 2005, pg 23):
‘And tell me, please, you spent $8502 on legal costs in these proceedings.  That is money you paid to your legal people? --- Yes.
Did you just derive that from income, did you? --- Yes, I did.
So one might assume that since the date of separation you have been able to save some money? --- Yes, since I increased my wage to full time.
When did you pay the $8500-odd?  Was it by instalments or was it in a lump sum? --- In instalments.
Over what period? --- A few years now.  This course has been going over a few years.  I’ve just been paying it off.’
44.	It is clear that his Honour also accepted this evidence, and it should be noted (particularly in view of the submissions made on behalf of the husband) that his Honour made no adverse credit findings against the wife (or, for that matter, the husband).
45.	There is an issue that the amount referred to in the above-mentioned passage of the wife’s cross examination is $8,500 rather than $10,000.  But given our conclusion that his Honour was in error in including in the pool the sum of $10,000 on account of the wife’s paid legal fees, with the result that on a re-exercise we would delete this sum from the pool, the slight variation in the figures is of no consequence.
the husband’s alleged interest in the factory unit in south-west sydney
46.	The wife’s second, third and fourth grounds of appeal are all directed to his Honour’s decision not to include within the pool as property of the husband, a one-half interest in a factory unit in South-West Sydney purchased by the husband with his brother and his wife (Mr and Mrs M) in November 2002, that is, over a year after the separation of the husband and the wife, but disposed of by the husband prior to the trial.
47.	In the context of his identification of the disputes between the parties which he had to determine, his Honour identified a dispute concerning the husband’s interest in the South-West Sydney property, saying:
‘7.	… The first [dispute] was whether or not the husband had a beneficial interest in the property known as and situate at factory unit 1 … [in South-West Sydney] and if so, the quantum of such interest and whether, pursuant to s 106B, the transfer pursuant to which the husband divested himself of such interest in favour of [his brother and sister in law, Mr M and Mrs M] should be set aside. …’  
48.	Then in setting out the factual background to the case, his Honour made in paragraph 20 of his judgment the following findings of fact concerning the purchase and financing of the factory unit– none of which appear to be challenged by the grounds of appeal as drafted:
•	in November 2002 the factory unit was purchased by the husband as to 50 per cent and Mr and Mrs M as to the remaining 50 per cent;
•	all monies provided to complete the purchase, which was made possible by a substantial borrowing from St George Bank, were provided by Mr and Mrs M;
•	the husband has at no time paid any money for, or towards, the conservation of the property;
•	the rental income from the property, paid by a business owned and operated by Mr and Mrs M, has been applied towards the mortgage and other outgoings on the property;
•	the evidence suggests there has been a shortfall each year since the property as purchased and that such shortfall has been met by Mr and Mrs M without contribution by the husband.
49.	Shortly thereafter in paragraph 25 of his judgment, his Honour stated that ‘[t]he legal interest formerly held by the husband in [the South-West Sydney property] is agreed to be $25,000.00.’  His Honour also stated that for reasons to be given, he was ‘not persuaded that the husband has, or has ever had, a beneficial or equitable interest in the property’, and that therefore the sum of $25,000 would not be included in the pool.
50.	His Honour commenced his reasons for not including the interest in the factory unit in paragraph 45 of his judgment.  In that paragraph and in the following paragraph he made reference to the written submissions on behalf of the wife, which were before him, saying:
‘45.	The Court has declined to include $25,000.00 in respect of the …unit [in the South-West Sydney] as part of the property of the parties.  It is necessary to give reasons for so doing.  It was submitted on behalf of the wife in relation to the husband’s former interest in [the factory unit] that: 
	“The dispute between the parties in respect of factory unit is simple. The Wife contends that the Husband transferred his 50% share to his brother and sister [in law, Mr and Mrs M], for $1 in approximately July 2004 in order to remove his equity from the pool of property the subject of the proceedings. The Husband asserts that as he had not made any financial contribution to the purchase or mortgage, then he had no entitlement to a share of any equity in the factory unit, and was free to transfer his share to his brother without any proper consideration.” (Wife’s Submissions, paragraph 11)
46.	The factual background to the acquisition of the husband’s interest in [the factory unit] was said to be “common ground”, that being:
	“… that in September 2002 the Mortgagee, St George Bank, would not grant [Mr and Mrs M’s] finance to purchase the Factory unit. Typically, they required greater serviceability than [Mr and Mrs M] could demonstrate. The Husband, who at that time was a serving Police Officer with an income of approximately $45,000, agreed to have his name placed on the title as to a 50% share. He also agreed to become a joint mortgagor. The purchase and mortgage were then completed resulting in the Husband becoming a 50% tenant in common, and sharing responsibility for the Mortgage.” (Wife’s Submissions, paragraph 13)’ (emphasis added)
51.	His Honour then stated in paragraph 47 that he was ‘unable to find on the balance of probabilities precisely what the intention was’ for the transfer of the husband’s legal interest.  However, his Honour concluded that that intention was not decisive for the reason that it could, in his words:
‘47.	…be found with confidence … that the registered proprietors did not intend that the husband would acquire a beneficial interest in the property at the time of its acquisition and at all material times thereafter acted in a manner essentially consistent with that intention.’ 
52.	Having made this finding, his Honour then went on to consider the fact that notwithstanding his transfer of the legal interest in September 2004, the husband remained a mortgagor in relation to the property, observing as follows:
‘50.	… it is reasonably apparent that the husband would be entitled to be indemnified by his brother and sister in law in respect of the mortgage, either in reliance upon the original agreement between the parties at the time the property was purchased, or in consideration of his having divested himself of his legal interest in the property in their favour in September 2004.’ 
53.	His Honour then made these further observations apparently in support of his conclusion that the husband had never had a beneficial interest in the factory unit:
‘51.	With respect to learned Counsel for the wife, the evidence does not establish that the husband expected “financial gain” as a result of his involvement in the [factory unit] acquisition and subsequent disposal of his legal interest in it.  The opposite is suggested by the evidence.  How the husband came to be a registered proprietor is not in doubt: the explanation proffered by the husband’s brother and sister in law is credible. 
52.	The dealings between the three, though perhaps “unusual”, as was submitted on behalf of the wife, do not, in the Court’s mind, arouse such suspicion as would lead to the drawing of the inferences advanced on behalf of the wife. 
53.	Whilst it may be “unusual” in this day in age, the Court does not accept that a man lending his name and evidence of income to his brother to assist the brother to complete a purchase which he may otherwise be unable to complete should, in the circumstances revealed by the evidence in this case, arouse suspicion. The undisputed evidence of a complete absence of financial contribution by the husband, either at the time the property was acquired, whilst it was held by all three registered proprietors thereafter or at the time the husband disposed of his interest in the property, allegedly for his own gain in the present proceedings, is significant. 
54.	Sensibly, the second and third respondents relied upon exhibits tendered “to demonstrate how they financed all aspects of the factory purchase, including all legal fees, deposit, body corporate fees and outgoings, and including all mortgage repayments to the St George Bank”.  As they were entitled to, the second and third respondents relied on “the evidence given by the Respondent Husband that he did not in fact make any financial contribution to the original purchase, maintenance or mortgage repayments for the factory unit”.  
55.	It was conceded at trial, and confirmed in the submissions on their behalf, that, “but for the inclusion of the Respondent Husband as a borrower, the mortgage would not have been secured with the St George Bank to purchase the factory unit”.  As was submitted by them, the second and third respondents “produced exhibits and gave oral evidence to the Court proving that 100% of the outgoings for the factory unit had been claimed in their taxation returns”.  
56.	It is to be remembered that the husband is suggested to have disposed of an equity presently worth approximately $25,000.00. There is no issue that stamp duty, solicitors’ fees and valuation expenses on the property, paid by the brother and his wife, exceeded $10,000.00. The improbability of the transaction successfully avoiding scrutiny increases the improbability that such funds would have been expended unless, as is asserted on behalf of the husband and his brother and sister in law, the husband had no equitable or beneficial interest in the property and was never regarded as having had such an interest. 
…
59.	The Court is thus satisfied that the beneficial ownership of the factory unit was at all times vested in the second and third respondents.  The whole of the purchase price of the property having been provided by them, no consideration having been given then or subsequently by the husband, and no detriment having been incurred by him on their behalf, the husband held his legal estate on trust in favour of the second and third respondents, as all parties to the transaction had agreed would be the case.   
60.	To the extent that it is submitted, as it has accurately been, that the husband did, by becoming a joint mortgagor with the second and third respondents, incur a liability, that liability was, to the extent that the security provided by the factory unit may have been insufficient to satisfy it, able to be a liability in respect of which the husband was entitled to be indemnified by the second and third respondents.
61.	Accordingly, it does not matter what the husband hoped to achieve by the transfer to the second and third respondents of the husband’s legal interest in the factory unit.  All the husband could ever have had to transfer was his bare legal title, the transfer of which, irrespective of intention, could not have defeated any claim by the wife or diminished the net asset pool of the parties.  In the Court’s view, it does not matter that the intention was, as it clearly was, to remove the interest from the husband’s legal ownership and take it outside the ambit of the proceedings between the husband and wife under Part VIII of the Family Law Act.  It is understandable that the second and third respondents would not have wished to become embroiled in the litigation between the husband and wife, albeit that desire has to some extent been thwarted by virtue of the wife’s Amended Application.  
62.	Given the Court’s conclusion with respect to the beneficial ownership of the factory unit at all material times, the transfer of the husband’s legal estate to the second and third respondents could not enliven the provisions of s 106B. …’ 
the grounds of appeal directed to the interest in the factory unit in south-west sydney 
54.	The wife’s complaints in relation to the exclusion of the factory unit interest as contained in Grounds 2, 3 and 4, are that his Honour erred:
•	in failing to find that the husband was or should be found to be beneficially entitled to a one half interest in the South-West Sydney property (Ground 2);
•	in finding against the evidence, or the weight of the evidence, that:
i.	‘it was reasonably apparently that there was an original agreement between the parties at the time of purchase’ (of the factory unit); and
ii.	that ‘the [husband] was entitled to be indemnified by [Mr and Mrs M]’
as to the husband’s undisputed liability as joint mortgagor of the factory unit (Ground 3); and 
•	in finding that the transfer of the husband’s interest in the factory unit, ‘could not have defeated any claim by the [wife], or diminished the net asset pool of the parties’ (Ground 4).
55.	It will be convenient to dispose first of the complaint contained in Ground 3.  It would seem from the submissions made in support of Ground 3 that it is directed to his Honour’s findings in paragraph 47, 50 and 60, which we will here for convenience repeat:
‘47.	…What can be found with confidence is that the registered proprietors did not intend that the husband would acquire a beneficial interest in the property at the time of its acquisition and at all material times thereafter acted in a manner essentially consistent with that intention.  
…
50.	Irrespective of these matters, it is reasonably apparent that the husband would be entitled to be indemnified by his brother and sister in law in respect of the mortgage, either in reliance upon the original agreement between the parties at the time the property was purchased, or in consideration of his having divested himself of his legal interest in the property in their favour in September 2004.
…
60.	To the extent that it is submitted, as it has accurately been, that the husband did, by becoming a joint mortgagor with the second and third respondents, incur a liability, that liability was, to the extent that the security provided by the factory unit may have been insufficient to satisfy it, able to be a liability in respect of which the husband was entitled to be indemnified by the second and third respondents.’
56.	We understood it to be the wife’s submission that there was no evidence before his Honour of any original agreement between the husband and Mr and Mrs M or of any agreement to indemnify.  
57.	While there may well not have been any evidence before his Honour of any original agreement, he was entitled, in our view, to assume that there must have been some agreement, understanding or arrangement between the husband and his brother and sister in law at the time when the property was purchased and the mortgage taken out in the names of all three parties.  Otherwise those transactions would not have occurred.  We consider it safe to assume that in the passages in question in his judgment, his Honour was doing no more than referring to that initial understanding, arrangement or agreement between the parties.  Indeed, we note that in the quotation from the wife’s submissions to his Honour, which appears at paragraph 46 of his judgment (see paragraph 50 above), that there are references (which we have emphasised) to agreements by the husband to have his name placed on the title and to become a mortgagor.
58.	So far as the matter of the indemnity is concerned, a careful reading of paragraphs 50 and 60 of his Honour’s judgment reveals that he did not find that there was an agreement to indemnify, but only that the husband would have been, or was, ‘entitled to be indemnified’.  On the unchallenged facts before his Honour concerning the arrangement between the husband and his relatives, we consider that it was open to his Honour to conclude that there was ‘an entitlement’ on the part of the husband to be indemnified (albeit one that might have to be established as a matter of law rather than agreement).  We thus consider that Ground 3 has no substance.
59.	In support of the assertion made by Ground 2 that his Honour erred in failing to find that the husband was, or should be found to be, beneficially entitled to a one half interest in the factory unit, Counsel for the wife placed particular reliance on the fact that in an affidavit sworn by the husband on 9 March 2004 (that is, before the transfer of his half interest to his brother and sister in law), he had included in the list of his assets and liabilities his half share in the factory unit (shown at a value of $125,000) and his share of the mortgage loan (shown at $117,110.32).  Counsel also relied on the fact that in a financial statement sworn on 21 February 2003 the husband had shown a 50 per cent interest in the factory unit as well as making reference to the mortgage and to the apparent receipt of 50 per cent of the rents from that property.  On the basis of this evidence, it was submitted that it had been the intention of the husband that he owned (beneficially) a 50 per cent share in the property.
60.	It was further submitted on behalf of the wife, that given that the husband had contributed that proportion of the purchase price (represented by the amount borrowed by him) and the husband’s continuing 50 per cent liability under the mortgage, that following the husband’s transfer of his legal interest to his brother and sister in law, they held such proportion of the property (as represented by the husband’s contribution to the purchase price) on a resulting trust for the husband.
61.	It was also asserted that the husband should be held to have some entitlement in relation to the factory unit arising by virtue of partnership law on the basis of the evidence which was before his Honour concerning a tax return for the partnership which, it was apparently common ground at trial, existed between the husband, his brother and his sister in law in relation to the factory unit.
62.	It is important to note, however, that there was substantial cross-examination of the husband concerning his earlier documents which had included reference to his interest or liability in respect of, and receipt of rents from, the factory unit.  There was also cross-examination of the husband’s brother concerning the partnership.
63.	Although we find it somewhat surprising that his Honour did not in his relatively lengthy discussion of the factory unit dispute refer to these matters of the husband’s earlier documents and of the partnership arrangement, we are, on balance, not prepared to interfere with his Honour’s conclusions in relation to the factory unit given the advantage that his Honour had in seeing and hearing the husband give his evidence as to the lack of any benefit received by him from the factory unit, and also his reasons for assuming the mortgage liability.
64.	But even if his Honour was wrong in his conclusion that the husband had no interest in the factory unit which should be included in the pool for purposes of the property settlement proceedings, it would, in our view, have made virtually no difference to the outcome of this case had the factory unit been included in the pool.  This is because it was a venture which the husband undertook post separation and to which the wife could be said to have made no contribution.  With an agreed value of only $25,000, and indeed the very nature of the interest, its impact on the s 75(2) matters would, in our view, be minimal.  Thus, we are not satisfied that there is substance in Ground 2.
65.	Our conclusion in relation to Ground 2 would also seem to dispose of Ground 4, at least so far as we understand that ground to assert that a conclusion that the husband had an interest in the factory unit would have had some effect on the outcome of the property settlement proceedings between the husband and the wife.
the assessment of the parties’ contributions
66.	When his Honour came to consider the parties’ contributions, he determined (in paragraph 65 of his judgment) that he would adopt an asset by asset approach, with there being two categories of assets, constituted by the husband’s superannuation entitlement valued at $1,081,726 and by all other assets.
67.	Then, in apparently dealing with the second category, being all assets other than the husband’s superannuation interests, his Honour determined (in paragraph 67 of his judgment) that until the date of separation the wife had made the greater contribution as homemaker and parent and the husband had made the greater financial contribution, and that the ‘totality’ of their contributions was ‘essentially equal’.
68.	His Honour then turned in paragraph 68 to consider the contributions of the parties in the post separation period.  However, in the course of considering the post separation period, his Honour apparently referred again to the pre separation period, saying:
‘70.	It was submitted on behalf of the wife that a “5% greater contribution by her would be within a courts [sic] discretion” in respect of the period of cohabitation between the parties. Such disparity from what was otherwise inferentially suggested to be a position of  equality was that:
	“… due to the peculiar nature of the Husband’s work as … [a] police officer, he was absent from the home for extended periods. This resulted in the Wife meeting the bulk of the children’s care. Up to separation the Wife submits that the combination of her majority care for the children and her attending almost constant employment, would give her a marginal advantage. A 5% greater contribution by her would be within a courts [sic] discretion.” (Wife’s Submissions, paragraph 29) 
	This submission overlooks the reality that the work undertaken by the husband was no doubt dangerous and, as has since been demonstrated, stressful.  It also overlooks the fact that the wife acquired a tertiary qualification for employment during cohabitation.  Unlike that acquired by the husband, such qualification remains viable in terms of a capacity to earn.’ 
69.	Immediately thereafter, his Honour quoted (in paragraphs 71 to 73) from the parties’ written submissions in relation to the post separation contributions.  
70.	His overall conclusion in relation to all the parties’ contributions to all assets (other than the husband’s superannuation) was as follows:
‘74.	A modest adjustment to the wife’s contribution entitlement is appropriate in light of the evidence with respect to the post separation period.   The burden of caring and providing for the children fell somewhat more on her than on the husband during that period.  No adjustment for the period of cohabitation is warranted.  A reflection of contributions to this group of assets of 52.5 per cent to the wife and 47.5 per cent to the husband would in the Court’s view be a tangible but not disproportionate reflection of the post separation factors to which reference has been made.  These observations and conclusions are confined to the assets of the parties other than the husband’s State Super entitlements.  
75.	To summarise the Court’s deliberations with respect to contributions, the Court concludes that the wife should be entitled to 52.5 per cent ($256,594.80) of the net “tangible” assets of the parties and the husband to 47.5 per cent ($232,157.20) thereof.’ 
71.	His Honour then turned to what he termed ‘[t]he more difficult matter’ of the husband’s State Superannuation entitlement (that is, the entitlement valued at over one million dollars).  After a discussion of some seven paragraphs, he concluded:
83.	The Court does not understand that the decision of the Full Court in Hickey obliges the making of a contribution finding with respect to the husband’s State Super entitlement. The reality that the Court is not obliged to make an order with respect to superannuation simply because a party seeks it, reinforces such a conclusion. In the circumstances of this case, the Court proposes to consider the husband’s superannuation entitlements in what was described in Hickey as “the third step”.
84.	Whilst acknowledging that the wife made a real and substantial contribution, which cannot be meaningfully quantified, to the husband’s superannuation entitlements, and that the husband’s contributions in that regard were of significantly greater magnitude, the Court proposes considering the husband’s superannuation entitlements within the context of s 75(2) and/or s 79(2). As will be seen, such consideration necessarily involves the issue of whether or not a “splitting order” should be made.
72.	By Ground 5 it is asserted that his Honour erred in the assessment of the parties’ contributions (with such assessment being outside the reasonable ambit of discretion) in:
‘i.	finding both that the [husband’s] contributions were greater as a consequence of and that as a matter of fact the work undertaken by the [husband] was dangerous;
ii.	giving insufficient weight, if any, to the contributions of the [wife] in respect of the [husband’s] pension/ superannuation entitlements;
iii.	finding that the [wife’s] care of the children during marriage, coupled with her almost constant employment during the marriage warranted no additional contribution based entitlement to the [wife]; and,
iv.	by allowing only a 2.5% post separation contribution by the [wife][.]’
73.	We will consider later his Honour’s approach to the husband’s State superannuation entitlements and in that context consider the complaint contained in Ground 5(ii).
74.	As to the remaining complaints in Ground 5, we are not persuaded that it was beyond a reasonable exercise of the discretion to determine that the husband’s financial contributions during cohabitation should be regarded as equal to the wife’s home-making and parent contributions and her financial contributions made during that period.  This is particularly so in circumstances where, as we understand, no income tax records for the period of the parties’ cohabitation were available (which would enable some comparison of their respective earnings).
75.	Specifically in relation to the complaint concerning his Honour’s comment that the work undertaken by the husband as a police officer would be dangerous and stressful, we consider it is an oversimplification to assert as the first paragraph of Ground 5 does, that his Honour found that the husband’s contributions were greater as a consequence of his work.  The relevant paragraph from his Honour’s judgment was paragraph 70 which we have already quoted in full (see paragraph 68 above).
76.	It will be seen from paragraph 70 that his Honour referred to the dangerous and stressful nature of the husband’s work in the context of responding to the wife’s claims regarding the greater burden which she carried in relation to the children because of the husband’s absences from home.  We consider that his Honour was entitled to assume that the work of a police officer would be dangerous and stressful.  In any event, it seems clear that stress was the cause of the husband’s early retirement.
77.	The two and a half per cent adjustment in the wife’s favour on account of her post separation contributions is also, in our view, within a reasonable exercise of the discretion, particularly when it is made clear that it has no application to the wife’s legal fees paid out of post separation earnings.
78.	In addition to the complaints contained in Ground 5, the wife also complained in Ground 8 that his Honour had failed to give adequate reasons for his findings and determination in relation to the parties’ contributions.
79.	Although we have earlier concluded that his Honour’s reasoning in relation to his treatment of the wife’s paid legal fees as a post separation contribution was unclear, we as an appeal court do not otherwise have any difficulty in ascertaining his Honour’s reasoning for reaching the conclusion which he did in relation to the parties’ contributions to their non-superannuation assets.  (See in this regard the test adopted by the Full Court in Bennett and Bennett (1991) FLC 92-191.)  Thus, to the extent that Ground 8 is directed to his Honour’s reasoning in relation to his assessment of the parties’ contributions, it has little substance.
the s 75(2) matters
80.	Under the heading ‘Section 75(2)’ his Honour referred in paragraphs 85 to 96 of his judgment to the following matters: the wife’s future obligation to house and support the three children of the marriage; the husband’s child support of $192 per week, which his Honour described as “being far from nominal”; the wife’s relationship with Mr W; and the capacity of each of the parties for employment.
81.	His Honour then returned in paragraph 97 to ‘consider the question of the husband’s superannuation entitlement’, which it will be recalled, he had earlier said should be done ‘within the context of s 75(2) and/or s79(2)’.  We will return shortly to his Honour’s treatment of this matter.
82.	Ultimately, his Honour determined (at paragraph 113) that the wife should receive on account of the s 75(2) matters an adjustment of $80,000 to take account of the husband’s superannuation entitlement.  His Honour made no other adjustment on account of s 75(2) matters.  
83.	In the final paragraph of his judgment (paragraph 115), his Honour considered the impact of his proposed orders, and he concluded that he was ‘satisfied that the proposed orders do not offend either s 75(2)(o) or s 79(2)’.
84.	In addition to the assertion in Ground 8 that his Honour’s reasoning was inadequate in relation to his determination in relation to the s 75(2) matters, it is asserted by Ground 6 that his Honour erred in the assessment of the s 75(2) matters in:
‘i.	finding that the [husband] no longer had an earning capacity as a consequence of his experience and qualifications as a police officer;
ii.	misdirecting himself that on the evidence the [wife] would in the future have a greater capacity to earn income than the [husband];
iii.	giving insufficient weight to the [wife’s] ongoing obligation to care and house three young children;
iv.	giving insufficient weight to the disparity in the financial positions of the parties, particularly having regard to the entitlement of the [husband] to a pension/ superannuation[.]’
85.	Given the conclusion which we will reach in relation to his Honour’s treatment of the husband’s State Superannuation entitlement, it is unnecessary that we concern ourselves with the weight which his Honour attached to the relevant s 75(2) matters.  However, it is necessary to say that nothing was put to us which would persuade us that his Honour erred in his conclusions regarding the husband’s income earning capacity.
the state superannuation interest
86.	It will be recalled that his Honour included in the schedule of the assets and liabilities of the parties (which appears at paragraph 42 of his judgment) the husband’s State Superannuation entitlement valued at $1,081,726 as well as the husband’s superannuation entitlement with MLC valued at $8,352, and the wife’s superannuation entitlement valued at $7,993.
87.	Immediately after setting out that schedule of assets and liabilities, his Honour made the following observations concerning the husband’s State Superannuation entitlements:
‘43.	It will be immediately evident that the most valuable “asset” of the parties is the husband’s State Super entitlement.  The evidence is clear (see affidavits of Mr [B] and Ms [D]) that the sum of $1,081,726.00, at which such interest is valued, is not currently available to the husband in lump sum form.  Nor is either of the two components of such sum.  The entitlement is and will remain, until at least the husband’s fifty fifth birthday some 16 years hence, payable only as a pension according to the unchallenged evidence of both experts.’    
88.	His Honour then indicated in paragraph 44 that he proposed to consider the superannuation on ‘an asset by asset’ basis, and he repeated that intention later in paragraph 65 at the commencement of his consideration of the parties’ contributions – although it is clear from paragraph 65 that he only intended to treat the husband’s State Superannuation in this way.
89.	After reaching his conclusion in paragraph 75 that the parties’ contributions to ‘tangible’ (that is, non-superannuation) assets should be divided 52.5 per cent to 47.5 per cent in the wife’s favour his Honour provided the following analysis of the nature of the husband’s State Superannuation entitlements:
‘76.	The more difficult matter is the husband’s State Super entitlement.  Whilst the figure of $1,081,726.00 is the unchallenged value of the entitlement and must be regarded as such, it is apparent that the husband cannot obtain a lump sum of that magnitude, or it seems a lump sum of any magnitude, for at least approximately sixteen years.  If the Court resolved to award the wife a portion of the husband’s superannuation entitlement, there is no suggestion that the husband could obtain such sum from the trustees of the superannuation fund.  
77.	It is desirable, if not essential, to have regard to the nature of the husband’s superannuation entitlements and the circumstances surrounding the entitlement becoming payable to the husband as a pension, as it clearly is, and on the evidence before this Court, is likely to continue to be in the foreseeable future.  There is no basis for finding, on balance, that any of the circumstances which could result in the husband ceasing to receive fortnightly superannuation payments is likely to materialise. The payments are indexed, potentially for the rest of the husband’s life, unless at age 55 or 60 he elects to commute his entitlement to a lump sum. 
78.	The husband’s entitlement to receive superannuation payments from the State Super Fund has arisen by a combination of factors. The husband was, from 1984 until the termination of his employment as a Police Officer in early 2004, a contributor to the superannuation fund. For approximately thirteen years, such contributions coincided with the co-habitation of the parties. To the extent that the husband’s superannuation entitlements have arisen by virtue of contributions, the evidence suggests that the direct contributions of the husband, and the indirect contributions of the wife ought in the circumstances be seen as approximately equal to the date of separation in 2001 at least. How far that takes the Court for practical purposes is less than clear. There do not appear to be any figures available to enable the Court to quantify the husband’s contributions or his resignation benefits with respect to the fund.  The husband contributed to the fund for another three years after the parties separated before he was invalided out of the Police Force. 
79.	The contributions were paid into the fund from the husband’s salary with a view to the future security of both parties and, albeit possibly to only a small extent, reduced the funds available to the parties to otherwise invest for that purpose or simply to expend for the betterment of their other assets or lifestyle.
80.	The other factor which gave rise to the husband’s superannuation entitlement becoming payable is that his employment as a Police Officer was terminated on medical grounds. It is apparent from the evidence that the decision to terminate the husband’s employment and advise the trustee of the fund to commence making pension payments to him, was based on an unfortunate and serious deterioration in the husband’s health. Sensibly, none of the circumstances surrounding the husband becoming entitled to pension payments has been challenged in these proceedings. Without diminishing the significance of the contributions made by both parties to the accumulation of the husband’s prospective superannuation entitlement, it would be naïve not to recognise that it was the husband’s deterioration of health which caused the nature of the entitlement to change from one of accumulation to one of payment at least so far as the greater portion of his entitlement is concerned. The husband thereby lost the opportunity to advance in his career as a Police Officer, which has, realistically, been the only significant employment of his adult life, or to otherwise earn income, as a result of his incapacity. 
81.	The position is thus that the husband has an entitlement to receive pension payments which, when quantified in accordance with the relevant provisions under the legislation, translates as a large sum which he cannot presently access and may never access, in circumstances where any attempt to suggest the respective contribution entitlements of the parties with any precision would be a quite artificial and largely arbitrary exercise, unable to be related to any current values or meaningful sums, except the periodic pension payments currently being received by the husband.’
90.	Then having made reference to a passage from the judgment of Brennan J in Norbis v Norbis (1986) 161 CLR 513 at 539-40, his Honour reached his conclusion that although the wife had made ‘a real and substantial contribution’ to the superannuation entitlements, he proposed only to consider those entitlements in the context of the s 75(2) matters or in the context of s 79(2) – which is clearly a reference to the requirement that the Court must consider the overall justice and equity of the award.  We have earlier set out the paragraphs in which his Honour reached this conclusion, but it is convenient to here repeat them:
‘83.	The Court does not understand that the decision of the Full Court in Hickey obliges the making of a contribution finding with respect to the husband’s State Super entitlement. The reality that the Court is not obliged to make an order with respect to superannuation simply because a party seeks it, reinforces such a conclusion. In the circumstances of this case, the Court proposes to consider the husband’s superannuation entitlements in what was described in Hickey as “the third step”.
84.	Whilst acknowledging that the wife made a real and substantial contribution, which cannot be meaningfully quantified, to the husband’s superannuation entitlements, and that the husband’s contributions in that regard were of significantly greater magnitude, the Court proposes considering the husband’s superannuation entitlements within the context of s 75(2) and/or s 79(2). As will be seen, such consideration necessarily involves the issue of whether or not a “splitting order” should be made.’
91.	His Honour then in paragraph 85 commenced his consideration of the s 75(2) matters.  We have earlier set out the s 75(2) matters (other than superannuation entitlements) which he identified.  He then embarked upon a further lengthy discussion of the husband’s superannuation entitlements.  Notwithstanding the length of that discussion, we consider that it should be set out:
‘97.	It is convenient at this point to consider the question of the husband’s superannuation entitlement. But for the husband’s superannuation entitlements, the s 75(2) factors discussed earlier could reasonably be regarded as not giving rise to any adjustment in favour of either party, the wife’s obligation to house and accommodate the three children of the marriage, by reason of which she would prima facie be entitled to a significant adjustment, being offset by the wife having a greater capacity to earn income than the husband, by reason of which the husband would be entitled to a s 75(2) adjustment of similar magnitude. 
98.	It is necessary to determine the impact of the husband’s superannuation entitlement. As previously suggested, this has two dimensions, given that the wife seeks a splitting order with respect to the husband’s superannuation pension payments. For reasons earlier advanced, although the husband’s superannuation entitlement has been valued at the figure indicated, even having regard to the two components of the figure ($750,664.62 being the value of the husband’s pension to age 60 and $331,061.50 being the lump sum from age 60) any apportionment of the sum would be largely artificial given that the former component cannot be received as a lump sum and the later [sic] could not be receivable until 60 years of age. 
99.	Adjusting the wife’s entitlement to the husband’s pension payments out of the existing assets of the parties has a number of attractions, not the least of which is that it preserves the husband’s income stream for his support and rebuilding of his future whilst reducing the obligation of the wife to borrow in order to retain the matrimonial home as she seeks, thereby materially assisting her in servicing the existing mortgage and other outgoings on the property. It is also to be remembered that the impact on the husband’s income of a splitting order would appear likely to be a reduction in the wife’s entitlement to receive child support which would further impact upon her capacity to house and accommodate the children. Whilst a splitting order provides certainty of entitlement as between the parties, and whilst there is no evidence that the husband is likely to resume full time employment, those possibilities cannot be ruled out, in which case the entitlement to receive a proportion of the husband’s pension payments would appear likely to terminate, as the pension payments could be expected to terminate, given that the husband would return to employment with the Police Force which was no less well paid than the pension, and the wife would potentially suffer an injustice. The prospects of further litigation in that event would appear significant, although the likely outcome would be less clear. 
100.	Provided that it can be achieved on a just and equitable basis, it is preferable for both parties that their financial relations be severed and they be free to get on with their lives without their finances remaining enmeshed for decades. Adjusting out of the existing assets of the parties has very considerable potential in that regard. The more difficult question is whether that can fairly be achieved.  The husband’s interest in the former matrimonial home on a contribution basis is approximately $180,000.00.  An adjustment in the wife’s favour could be satisfied from that interest.   The husband seeks to retain the whole of his State Super entitlements, albeit on the basis of a totally unrealistic division of the tangible assets in his favour.  
101.	It is necessary to consider the approach to be taken with respect to the husband’s lump sum at age 60, some twenty years hence. The contribution based entitlement of the husband with respect to that potential payment does not appear to emerge in any documentation to which the Court has been referred.  It could reasonably be suggested that the approach to this entitlement, which had for decades prior to the advent of Part VIIIB been adopted, has much to commend it, although the absence of any figures to give some understanding of its present “real” worth is regrettable.  Given that there is no existing entitlement to the monies an adjustment out of existing assets, though somewhat arbitrary and artificial, represents the most appropriate and realistic reflection of that component of the State Super entitlements.’  
92.	His Honour then set out again at considerable length the submissions made to him on behalf of both parties as to how the superannuation should be treated (see paragraphs 102 to 111 of his judgment).
93.	The conclusion ultimately reached by his Honour both in relation to superannuation and the s 75(2) adjustment was as follows:
‘112.	As the submissions on behalf of each party make clear, the issue is not without complexity.  The breadth of discretion appears considerable, both in terms of the approach and the quantum of the order to be made once that question is answered.  Nothing to which the Court has been directed persuades it that a splitting order must or must not be made.  Unless to do so would be unjust to either or both parties, the Court considers an adjustment out of the net tangible assets to be preferable to making any orders with respect to the husband’s State Super entitlements.  The reasons for so concluding have earlier been referred to.   The Court is unaware of any statutory provision precluding it from doing so.  
113.	An adjustment in the wife’s favour by virtue of the husband’s State Super entitlement, present and future, out of the tangible assets of the parties is more just and equitable than the making of a splitting order if it can properly be achieved.  Quantifying the adjustment remains the conundrum.  It cannot be suggested that an adjustment out of existing property for an income stream, and a capital payment twenty years distance, is a scientific exercise.  The former is however a substantial financial resource and will continue to be so for years into the future.  The latter may be a very substantial asset in the future, albeit that event appears well into the distant future.  The Court concludes that to adjust in the wife’s favour by virtue of the husband’s State Super entitlement by a sum of $80,000.00 would be a reasonable reflection of the competing considerations to which reference has been made.  The sum is not suggested to be other than one arising from a broad exercise of discretion.  It is not a sum which the husband could presently pay out of his State Super entitlements.  If paid by instalments it would be years before the obligation was discharged.  No submissions made to the Court provide any real assistance in its determination.   The Court does the best it can to balance the competing considerations to which it has referred, but that is the nature of judicial discretion.’  
the grounds of appeal directed to the state superannuation interest
94.	It is asserted by Ground 7 that his Honour erred in his approach to the superannuation/ pension entitlements of the husband in:
‘i.	approaching the same on an asset by asset basis;
ii.	assessing the contributions of the [wife] to the [husband’s] pension/ superannuation entitlements in the manner in which the Court did;
such that the Court’s discretion in relation to both the approach to and adjustment to be made in respect of the same miscarried.’
95.	It will be convenient in the discussion of his Honour’s approach to the superannuation issue to also consider the complaints contained in Grounds 9 and 10, being that his Honour erred:
‘9.	… in failing to consider whether the Orders proposed were just and equitable pursuant to section 79(2) and otherwise.
10.	… in that the Orders made resulted in an alteration of the parties interests in their property and financial resources that was manifestly unjust and outside the reasonable ambit of the Court’s discretion.’
96.	His Honour was not in error determining in paragraphs 44 and 65 that he would adopt an asset by asset approach by which he would treat the husband’s State Superannuation entitlement differently from the parties’ other assets.  That he was not in error in this regard is clear from what was said by the majority in Coghlan and Coghlan (2005) FLC 93-220 (particularly at paragraphs 63 to 67), and we understood Counsel for the appellant wife to concede as much before us.
97.	However, as Counsel also submitted, it was then necessary and in accordance with the majority judgment in Coghlan (supra) (paragraphs 64 to 67) for his Honour to consider the parties’ contributions to the separate asset pool of the superannuation interest, and then to consider whether there should be any adjustments on account of the s 75(2) matters, with a final assessment being made as to whether the proposed orders are overall just and equitable.  Out of fairness to his Honour it must be explained that his judgment in this case was delivered prior to the Full Court’s judgment in Coghlan (supra). 
98.	Again as Counsel submitted, his Honour can be seen in paragraphs 76 to 84 of his judgment as carrying out an assessment of the parties’ contributions to the husband’s superannuation, and as then reaching the conclusion (particularly in paragraphs 78, 79 and 84) that the wife had made an equal contribution to 13/20 of the husband’s superannuation entitlements (being a proportion reflecting the years of cohabitation).  Counsel provided us with a calculation that an equal contribution to 13/20 of $1,018,000 ($661,000) (in fact $661,700) would, he submitted, result in an entitlement to the wife of $330,850. 
99.	However, and again as Counsel submitted, his Honour then awarded the wife an additional sum of only $80,000 (out of the non superannuation assets) on account of the husband’s superannuation entitlements, and he did so as an adjustment on account of the s 75(2) matters.
100.	It has to be recognized at this point that an adjustment in the wife’s favour of only $80,000 for a contribution which could be valued at over $330,000 (using the calculation provided by the wife’s counsel as a ‘rough initial point of reference’ (see Clauson and Clauson (1995) FLC 92-595 at 81,909 – 81,910)), must indicate that his Honour did not give sufficient weight to that contribution on behalf of the wife, and thus the complaint concerning insufficient weight to the wife’s contributions to the husband’s superannuation entitlements contained in Ground 5 (ii) must have substance. 
101.	It would seem possible to discern from his Honour’s reasons why he ultimately awarded the wife only an additional $80,000 as an adjustment on account of the husband’s superannuation, and also as to why he did not make the splitting order in relation to the husband’s interest which the wife then sought (but no longer sought at the conclusion of the hearing of the appeal).
102.	First his Honour appears to have been influenced by the fact that the husband was apparently entitled only to a periodic pension and would not be entitled to a lump sum of any magnitude for at least 16 years (see in particular paragraphs 76, 81 and 98 of his judgment).
103.	Secondly, his Honour was also apparently influenced by the fact that the superannuation pension had become payable to the husband because of his ill health and because of the husband’s loss of the opportunity to earn income as a police officer – although his Honour then appears to say in the following passage from paragraph 80 of his judgment that these matters should not diminish the significance of either party’s contributions to the husband’s prospective superannuation entitlement: 
‘80.	…Without diminishing the significance of the contributions made by both parties to the accumulation of the husband’s prospective superannuation entitlement, it would be naïve not to recognise that it was the husband’s deterioration of health which caused the nature of the entitlement to change from one of accumulation to one of payment at least so far as the greater portion of his entitlement is concerned. The husband thereby lost the opportunity to advance in his career as a Police Officer, which has, realistically, been the only significant employment of his adult life, or to otherwise earn income, as a result of his incapacity.’
104.	Further, and with the greatest respect to his Honour, it would seem from paragraphs 83 and 84 of his judgment (which we here repeat) that he reached the conclusion that if he made ‘a contribution finding’ with respect to the husband’s superannuation entitlement (which he had effectively already done in paragraphs 78 and 81), he would then have had to make an order with respect to that entitlement (presumably a splitting order): 
‘83.	The Court does not understand that the decision of the Full Court in Hickey obliges the making of a contribution finding with respect to the husband’s State Super entitlement. The reality that the Court is not obliged to make an order with respect to superannuation simply because a party seeks it, reinforces such a conclusion. In the circumstances of this case, the Court proposes to consider the husband’s superannuation entitlements in what was described in Hickey as “the third step”.
84.	Whilst acknowledging that the wife made a real and substantial contribution, which cannot be meaningfully quantified, to the husband’s superannuation entitlements, and that the husband’s contributions in that regard were of significantly greater magnitude, the Court proposes considering the husband’s superannuation entitlements within the context of s 75(2) and/or s 79(2). As will be seen, such consideration necessarily involves the issue of whether or not a “splitting order” should be made.’
105.	This conclusion appears to overlook the fact that when he had reached the stage of having assessed the parties’ contributions to both their superannuation and non superannuation assets, his Honour could have foreshadowed an order which operated in relation only to the parties’ non-superannuation assets, but which took into account the wife’s contributions to both the superannuation and non superannuation assets.
106.	However it must also be remembered that while a Court is required under s 79(4)(a), (b) and (c) to make findings concerning the parties’ contributions and that while the authorities from Pastrikos (1980) FLC 90-897 on have encouraged the Court to make what is usually a provisional award on the basis of contribution only, there is no obligation to do so.  The legislation requires only that the Court consider all relevant matters referred to in s 79(4), and then decide upon an order that is just and equitable in the light of findings in respect of the matters in s 79(4).
107.	It is clear to us from his reasoning in paragraphs 98 to 101, and then from 112 and 113 that his Honour did not consider that a splitting order was appropriate in this case, and that it was preferable to make any necessary adjustment in the wife’s favour out of the other assets.  His Honour’s reasons for not favouring a splitting order included the desirability of preserving the husband’s income stream and, also the concern that if the husband were to return to work as a police officer, his pension payment would cease (as also, presumably, would any payment being made to the wife pursuant to a splitting order).
108.	His Honour was entitled to rely on these matters as reasons for not exercising the discretion to make a splitting order, provided that he was able otherwise to make orders in relation to the other assets of the parties which were just and equitable having regard to all relevant matters referred to in s 79(4) including the parties’ respective contributions to their respective superannuation entitlements.
109.	However, we do not consider that an award of an additional $80,000 to the wife, which was apparently made to her having regard to the provisions of s 75(2)(f), could possibly have done justice to the wife given her contributions to the husband's superannuation as his Honour had found them to be.
110.	This appeal must also succeed therefore on the basis not only of the specific complaints regarding his Honour's treatment of the wife's contributions to the husband's superannuation entitlements as asserted by Grounds 3 (ii) and 7 (ii), but also on the basis of the complaint contained in Ground 10 that the award was manifestly unjust to the wife.
111.	Before concluding our discussion of the trial Judge’s treatment of the wife’s contributions to the husband’s State Superannuation entitlement, we consider that we should make some comment about the formulaic approach, often described as the ‘West and Green’ approach, to which his Honour might be seen as having had regard in paragraphs 76 to 84 of his judgment, and which seems clearly to have been relied on by Counsel for the wife in his submissions to us.  
112.	In West and Green (1993) FLC 92-395 the formula came into being, not as a means of assessing contributions to the date of hearing, but to allow for an order which would take effect in the future (upon the husband’s retirement). It was intended to reflect that future contributions to the fund would come from the husband, after a property division had been effected between the parties and with no conceivable contribution by the wife in the future.  In particular Kay J said (at page 80,038) (emphasis added):
`As the final payout figure will not be determined until such time as the husband retires from employment, and as the duration of the marriage compared to the duration of the years that the husband has been in the scheme will also not be determined until that time, it is appropriate in my view  to create a formula which will clearly indicate precisely what the wife is to receive when the husband elects to collect his superannuation.’
113.	Prior to the introduction of Part VIIIB into the Act, it appears to have been common  amongst some lawyers to use that  formula to quantify the ‘value’ of superannuation and to include the figure so arrived at, in the pool, as if it were property of the parties. In our view the ratio of West and Green was of narrow compass and may have been accorded an interpretation it did not warrant.   Be that as it may, this formulaic approach has been criticised in a number of cases.  In Harrison and Harrison (1996) FLC 92-682 the Full Court (Ellis, Baker & Warnick JJ) said (at page 83,084): 
‘It must first be said that in most cases a spouse's entitlement to superannuation is not property and therefore is not capable of any order under the provisions of s 79. See Crapp and Crapp (1979) FLC 90-615, Coulter and Coulter (1990) FLC 92-104 and Mitchell and Mitchell (1995) FLC 92-601. The various attempts which trial Judges, in their ingenuity, have made to take superannuation entitlements into account by reference to precise mathematical calculations, although perhaps desirable from a practical point of view, nevertheless do not enable or entitle them to include such sums as part of the property of the parties, however calculated. 
It follows from what we have said that in most cases the proper approach to be taken by trial judges, when dealing with a party's entitlement to superannuation in proceedings for alteration of property interests pursuant to the provisions of s 79 of the Family Law Act, is to adjourn the proceedings under s 79(5) with or without the making of any order under s 79(6) or, in the alternative, to treat the superannuation entitlement as a resource, pursuant to the provisions of s 75(2)(f) or (j).’
114.	In Bartlett & Bartlett (1996) FLC 92-721 the Full Court (Ellis, Baker & Coleman JJ), in dealing with an appeal from a case in which the trial judge had applied a West and Green type formula recognising the period of cohabitation as proportionate to the period of contribution in determining the sum to include in the property interests of the parties, averted to the difficulties with application of the formulaic approach saying that such case (at page 83,675): 
‘…illustrates the difficulties associated with adopting the formula type approach and the care which must be taken, if that approach is adopted, to include in the considerations, the financial resource being that portion of the present value of the superannuation quarantined after the application of the formula. 
In our opinion, what the trial Judge should have done, was to have included all moneys which the husband had received following his retirement as property and then adjust his assessment of contribution in relation to the pre-marriage and post-separation periods.’
115.	In O & O (2000) FamCA 1432, the Full Court (Finn, Coleman & Wilczek JJ) said: 
’69.	In so far as Ground 2 asserted that the preferable course for her Honour was have fixed a future entitlement for the wife, in relation to the superannuation, based on the “West and Green” formula, and consequently the proceedings should not have been adjourned and “s. 81” finality should have been achieved, we point out in that case that Kay J. did not in fact impose such a formula upon the parties.  Rather he acceded to their request to deal with a narrow issue in a way that both sought (See West and Green (1993) FLC 92-395).
70.	Perhaps even more importantly in relation to the suggested “formula” approach, it should be noted that in Harrison (1996) FLC 92-682, the Full Court impliedly disapproved of the formula approach, holding that in most cases, when dealing with a party's superannuation, the correct approach is either to adjourn the proceedings under s 79(5), with or without a s 79(6) order, or to treat the superannuation as a financial resource under s 75(2)(f) or (j).’ 
116.	There should, in our view, be no doubt since the introduction of Part VIIIB, that there is no longer any need to make orders of the kind made in West and Green nor to use the so called formula to arrive at a value for superannuation entitlements as the amendments occasioned by Part VIIIB enable the Court to make splitting orders and the Regulations provide a method of valuation. Nevertheless it seems to have survived to some degree in relation to the assessment of contribution.
117.	In Cahill & Cahill (2006) FLC 93-253, Coleman J said (at page 80,303): 
’71.	The Court was urged to adopt a formulaic apportionment of the entitlement. That approach is not entirely acceptable. The appropriateness of formulaic approaches in general remains to be conclusively considered by the Full Court. Apart from anything else, a formulaic approach has no real regard to the value of money at any given time, nor does it have any regard to the impact upon the family of the contributor to a superannuation fund at any given time in the life of the family, nor does it, or can it, have regard to the family's circumstances at that time.’ 
118.	Earlier in C and M [2003] FamCA 1204 Coleman J had said:
‘73.	On behalf of the wife, it was urged upon the Court, in some measure turning the Court's own words back on it, in reliance upon the decision of Cahill v Cahill (Coleman J, unreported, 7 March 2003), but in addition upon heavier and more weighty authority such as Harrison v Harrison (1996) FLC 92-682, Bartlett v Bartlett (1996) FLC 92-721, Tomasetti v Tomasetti (2000) FLC 93-023, that the Court should not apply a formulaic approach for a variety of reasons including the absence of actual figures in that regard, and the unfairness, it was asserted, of so doing have [sic] regard to the real value of money at the time.
74.	This is a matter not without difficulty.  It is patently obvious without any figures that the $86,000 was materially enhanced by virtue of post-cohabitation contributions, notwithstanding that there is no break-up of the entitlement of the wife at the time cohabitation commenced or the parties married. Accordingly, it would be, on the one hand, that is on the husband's perspective, somewhat unfair to take into account, for the purpose of a Pierce v Pierce (1999) FLC 92-844 type evaluation, the whole of the $86,000, 5 to 6 years into the relationship, contributions at least to the superannuation having been made during that period from salary that would otherwise have been available for the parties to spend or otherwise utilise. Conversely, from the wife's perspective, it can and has been fairly submitted, that it was always open to those advising the husband to obtain figures showing the entitlements in respect of superannuation, or indeed to have obtained evidence in relation to the entitlement if any at the date of cohabitation or marriage, and thereby, as may well have occurred, demonstrating that a substantial part of these moneys derived from post‑cohabitation or post-marriage contributions.
…
76.	The Court must do justice in equity, and it is according to law that it must do so.  In the circumstances, to take into account the whole of this sum as a contribution for and on behalf of the wife would ignore fundamental realities and be unjust to the husband.  On the other hand, to apportion on a strictly formulaic basis, to the extent that West v Green (1993) FLC 92-395 survives and countenances such an approach, that would be potentially unfair to the wife.’
119.	In BAR & JMR (2005) FLC 93-231 Young J rejected a West & Green approach and said (at page 79,856): 
‘278.	I reject the submissions of counsel for the husband. I do not adopt a West and Green formula approach. My over-riding obligation is to determine a just and equitable property settlement and I have therefore applied and evaluated the four step process in determining such an order. 
279.	In specifically rejecting the West and Green or a like arithmetical formula approach I have concluded that it is likely to be both inaccurate and inappropriate in a consideration of splitting superannuation interests under Part VIIIB of the Act.’ 
120.	In Trott and Trott (2006) FLC 93-263 Watts J posed the question `what place does “Webber and Webber” (1985) FLC 90-648 or “West and Green” (1993) FLC 92-395 formula still have?’ and elaborated at paragraph 166: 
‘In Coghlan the majority specifically said (at paragraph 66) that in the context of considering contributions (as well as the other factors in Section 79(4)) the following matters may well be relevant: 
1. The relationship between years of fund membership and cohabitation;
2. The actual contributions made by the fund member at the commencement of cohabitation (if applicable), at separation and at the date of hearing;
3. Preserved and non preserved resignation entitlements at those times.
The first matter mentioned by the Full Court seems to suggest that there may be life in a West and Green formulaic approach as a starting point for the consideration of what the initial contributions or post separation contributions were by the member to the fund. In my view, however, it would still be a matter to assess the weight and effect of "time served" contributions in the context of a history of all other contributions made by each party. The second and third matters mentioned in paragraph 66 of Coghlan might be more important depending on the nature of the fund. For example, it might be important, in a particular case, to know the amount that is in an accumulation fund at commencement of cohabitation. 
Conclusions in relation to contributions to the husband's category 2 superannuation
In this case, if a pseudo mathematical "time served" approach was taken using the West and Green formula, the wife would be entitled to 21.7% of the husband's superannuation interest (see paragraph 152 above: 10/23 × ½). 
I am mindful that Coleman J was sitting as a Full Court in McKinnon. I do not read his Honour's comments to yet be elevating a "time served" formulae to the status of "preferred approach". Probably the West and Green debate will be revisited by a future Full Court. 
The superannuation in this case is now, at least, to be considered a species of asset. It is also likely to be property within the meaning of the definition of property contained in Section 4(1) Family Law Act (see paragraphs 105 - 107 above). Subject to what I say at paragraph 234 below, it is no longer treated as a "financial resource". Superannuation can now be split. In my view the "West and Green" approach does not fit comfortably with how the Court assesses contributions in relation to other property and assets. The husband's initial contribution to the superannuation (and there is no evidence as to what it was) is eroded over time by contributions made by each party during the course of cohabitation. The wife's contributions as parent after the separation have to be taken into account.’ 
121.	We do not find a contribution assessment based on a calculation of years of marriage divided by the years the member had been in the fund to be helpful. In the context of considering contributions pursuant to s 79 it has never been necessary to apply a mathematical formula in the way we have described. All that is required is that the contributions of the parties be evaluated in relation to superannuation as they are to other assets. Further there may be real injustice in doing so as there is frequently far less contributed to a fund in the early years of membership compared to later years. A formulaic approach does not take account of the years in which greater contributions were made, often later in a marriage, nor the effect of contributions over many years of marriage which may have diluted initial contribution. (Pierce and Pierce (1999) FLC 92-844). 
122.	In our view this was the approach that the majority (Bryant CJ, Finn & Coleman JJ) in Coghlan (supra) was proposing when they set out in paragraphs 65 and 66 (at page 79,646): 
‘In summary, then, the trial Judge has a discretion as to how superannuation interests will be treated in a particular case. If superannuation is not included in the list of property but rather made the subject of a separate pool, it will be necessary where a splitting order is sought, or extremely prudent where no such splitting order is sought (in order to ensure that justice and equity is achieved) to: 
(a) value the superannuation interest (according to the Regulations if an order under Part VIIIB is sought or according to the Regulations or otherwise if no order is sought); 
(b) consider and make findings about the types of contributions referred to in s 79(4)(a), (b) and (c) which have been made by the parties to the superannuation interests on either a global approach or an asset by asset approach depending on the circumstances; 
(c) consider the other factors in s 79(4) being the matters in s 79(4)(d), (e), (f) and (g); and 
(d) ensure that pursuant to s 79(2) the orders in relation to the parties' property, and any order under Part VIIIB in relation to superannuation interests are just and equitable. 
In the context of a consideration of the matters referred to in sub-paragraphs (b) and (c) of the last paragraph, the following matters may well be relevant: the relationship between years of fund membership and cohabitation; actual contributions made by the fund member at the commencement of the cohabitation (if applicable), at separation and at the date of hearing; preserved and non-preserved resignation entitlements at those times; and any factors peculiar to the fund or to the spouse's present and/or future entitlements under the fund.’ 
123.	In our view it is clear from those comments that the majority in Coghlan (supra) was concerned with a consideration of actual contributions where they were ascertainable.  The relationship between years of fund membership and cohabitation might be relevant in a defined benefits scheme whereas actual contributions made by the fund member at the commencement of the cohabitation might be relevant to an accumulation fund where in both cases the marriage was of short duration.  However, in our view there is nothing said by the majority in Coghlan (supra) that would give any support for the application of some kind of a formula or that contributions to superannuation whatever the nature of the fund, should be treated in a different way from contributions to other property under s 79(4).  This is so in our view whether the superannuation is considered as part of one pool of assets or in a separate pool. 
Re-exercise of the discretion and the husband's subsequent Application to adduce further evidence
124.	We understood it to be the position of both parties at the hearing of the appeal that in the event we found substance in any of the grounds of appeal, we should re-exercise the discretion. We also understood it to be the position of both parties, at least as at the time of the hearing of the appeal, that the discretion should be re-exercised on the basis of the material which was before his Honour.
125.	Subsequent, however, to the hearing of the appeal and while our judgment was still reserved, the husband made an application for the hearing to be re-opened in order that an application might be made for us to receive further evidence.  Accordingly we were prepared to re-open the hearing of the appeal to enable that application to be made on behalf of the husband. This occurred on 19 July 2006.
126.	The further evidence which the husband wished to put before us related to correspondence received by the husband's solicitors from the wife's solicitors indicating that the wife now wished to sell the former matrimonial home.  It had been the wife's position before the trial Judge and at the hearing of the appeal that she wished to retain the home as a residence for herself and the children.
127.	The wife in her Notice of Appeal had sought that in the event that the appeal was successful, she should (relevantly for present purposes) receive the former matrimonial home free of any mortgage, together with a sum of $50,000 from the husband as well as a splitting order to the effect that she should receive 25 per cent of any ‘splittable’ payment received by the husband from the State Superannuation fund.
128.	However at the conclusion of the hearing of the appeal, the wife through her Counsel abandoned her claim for a splitting order and sought only to receive the house subject to the existing mortgage of approximately $119,000 and possibly also a cash sum of such amount as this Court considered appropriate.
129.	At the re-opening of the hearing of the appeal, Counsel for the wife initially opposed the reception of the further evidence from the husband concerning the wife's proposal to sell the home. Ultimately, however it was the position of the wife’s Counsel that we should receive the affidavits in question, being affidavits of the husband and of his solicitor, but Counsel also submitted that the information in those affidavits would change nothing.  We agree with that submission.
130.	Under the orders of the trial Judge the wife was to receive the home subject to the wife making a payment to the husband. At all times before us the wife continued to seek to receive the husband's interest in the home (but without payment to the husband).  At no time did the husband oppose the wife receiving the home (subject of course to a payment to him). In these circumstances, whatever plans the wife may have for the future of the home would seem irrelevant. Nevertheless given the ultimate attitude of Counsel for the wife, we consider that we should proceed on the basis that the further evidence sought to be adduced by the husband was received by consent.
131.	We return now to the re-exercise of the discretion on the basis of the material before his Honour. For this purpose we adopt the schedule of assets and liabilities prepared by the trial Judge but we delete as an asset the wife's paid legal fees of $10,000 for the reasons given earlier. We would also delete the value of the husband's State Superannuation as we consider it should be regarded as an entirely separate asset, particularly given that neither party now seeks a splitting order. We propose that the parties’ other superannuation interests should remain within the first pool or schedule if only for the reason that neither party sought that we should adopt any other course. The revised pool of all assets (other than the State Superannuation interest) is therefore as follows:

Assets of the parties	Husband	Wife	
[Former matrimonial home]		$510,000	
Credit Union account	$5,600		
Furniture & household effects	$10,000	$10,000	
Legal fees	$30,000		
Motor vehicle		$15,250	
Bank account		$1,000	
Superannuation 
-	MLC	
$8,352	$7,993	
			
Liabilities			
Mortgage – [former matrimonial home]		-$119,442. 97	
			
Total net assets	$53,952	$424,800	
Total joint net assets	$478,752.03	say $478,750	

132.	Having found no substance in the complaints directed to his Honour's 52.5 per cent to 47.5 per cent assessment in the wife's favour of the parties’ pre and post separation contributions to these assets (other than the husband's State Superannuation entitlement) and to the welfare of this family, we see no reason to depart from that assessment by his Honour.
133.	We would also adopt his Honour's approach of using the assets (other than the husband’s State Superannuation interest) to meet the entitlements of the parties which are based on their contributions to those assets and also on their contributions to the welfare of the family.  On this approach the wife would be entitled to assets to the value of $251,344 (52.5 per cent of $478,750) and the husband $227,406 (being 47.5 per cent of $478,750).
134.	Similarly we are prepared to accept his Honour's assessment that the wife made what could be regarded as an equal contribution to the husband’s superannuation entitlement to the date of separation.  We further accept to the extent the wife’s contributions enabled the husband to attain his salary level in the Police Force, that contribution is reflected in the husband’s salary which is the basis on which his present hurt on duty pension is calculated, and is a further indirect contribution to the husband’s superannuation.  The husband’s superannuation was valued at $1,081,726. The “rough starting point’ referred to by counsel of $330,850 is an equal contribution to 13/20 of the husband’s superannuation entitlements (being a proportion reflecting the years of cohabitation). Although we have rejected this kind of formulaic approach, it must be emphasised that we were not taken to any other material which would enable us to evaluate more specifically the wife’s substantial contribution to the husband’s State Superannuation entitlement.  
135.	The difficult issue for us in this case is how this substantial contribution by the wife to the husband’s State Superannuation interest can be recognised in circumstances where a splitting order in relation to the husband's State Superannuation fund was not ultimately sought.  Clearly the wife’s entitlement can only be met from the husband's share of the other assets. However that share has a value of only $227,406. If the husband was to retain or receive that amount, it would be made up of his paid legal fees of $30,000 (which are of course notional), his car (at $15,250), his household effects ($10,000) and his Credit Union account ($5,600) and his relatively small MLC superannuation fund of $8,352 with the balance of his entitlement being his share in the equity in the former matrimonial home.
136.	In our opinion, it would not be just or equitable, let alone practical, to take from the husband his car or household effects (total $25,250). Nor can his legal fees be used ($30,000). The husband should also be entitled to retain his Credit Union fund as a source of some cash ($5,600) and his MLC superannuation. Thus it is only the husband’s share of the equity in the former matrimonial home that can be used to satisfy, so to speak, the wife's entitlement on account of her contribution to the husband's State Superannuation entitlement.
137.	Accordingly, we conclude that given the extent of the readily available assets in this case, a just and equitable distribution on the basis of the parties’ contributions (including to the husband’s State Superannuation interest) would be achieved if the wife was to receive the entire equity in the former matrimonial home, and that otherwise each party retain the assets which they have.
138.	On the basis of such a distribution and having regard to the findings of the trial Judge in relation to s 75(2) matters, we consider that no further adjustment is required on account of those matters.  However, we would observe that, given the emphasis on the husband’s State Superannuation interest and its relative value in this case, it needs to be borne in mind that the husband’s pension payments are also his income and pension payments whilst recognising their real and substantial present day value, are derived at this point in time because of his disability.  While he may many years in the future receive a lump sum, or engage in some employment other than in the Police Force, it must be remembered that the wife is to receive the immediate capital benefit of the equity in the house.
139.	We will therefore vary his Honour's order to provide simply that the husband forthwith transfer his interest in the former matrimonial home subject to the mortgage within 14 days of the date of these orders.  It should be evident from what we have said in the immediately preceding paragraphs that we consider that this is a just and equitable outcome.  It is an outcome arrived at with a view to the nature of the assets of the parties rather simple percentages.
Costs of the appeal
140.	At the conclusion of the hearing of the appeal we invited submissions in relation to the costs of the appeal.  We were informed by Counsel that there were matters which made it preferable for there to be written submissions in relation to the costs of the appeal after delivery of our judgment in relation to the appeal. Accordingly we will make directions for such submissions.
I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of this Honourable Full Court 

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