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TODAY'S LEGAL NEWS
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NSW POLICE SUPER AND FAMILY LAW
Author: Dominic Mason
Publish Date: November 28, 2006
Full Court sheds light on treatment of HOD Pension in property settlement matters
In the case of M & M [2006] FamCA 913 decided on
The parties had been married for approximately 13 years. They had 3 children under the age of 18, who lived with the mother. The husband had joined the NSW Police Force in May 1984 and had been contributing to the superannuation fund from that date. The parties married in January 1989 and separated in June 2001. The husband was medically discharged in January 2004. He was in receipt of a Police hurt on duty superannuation allowance.
The significant assets of the parties were the matrimonial home, valued at $510,000.00 with a mortgage of $120,000.00, in which the wife and children were living, and the husband’s State super entitlement, which was valued at $1,081,726.00. This figure was made up of a value of the pension to age 60, which was not commutable and the value of the lump sum available on reaching age 60.
The Court confirmed the earlier decision of Coughain v Coughlan by holding that the Trial Judge was correct in adopting an asset by asset approach in relation to the husband’s superannuation entitlements. In other words, the Trial Judge was correct in assessing the husband’s superannuation asset separately from the other assets of the parties.
The Court also discussed the assessment of contributions to the husband’s superannuation by both the husband and the wife. The Court stated that the “formulaic approach” taken from the earlier case West v Green was not helpful in assessing contributions to superannuation. The Court found that “all that is required is that the contributions of the parties be evaluated in relation to superannuation as they are to other assets”.
However, in the absence of other evidence, the Court found that the wife made equal contributions to the husband’s superannuation entitlement for the 13 years during which they were married out of the 20 years in total that the husband contributed to the superannuation. The Court valued the wife’s contribution to superannuation based on this assessment.
The Court was not asked to make an order splitting the husband’s superannuation entitlement. Instead, the Court made an adjustment to the party’s other assets (i.e. the matrimonial home) which took into account the greater value of the husband’s superannuation entitlement. This order was made after considering the nature, form and characteristics of the husband’s superannuation entitlement and also in the light of the fact that the wife did not ultimately seek a splitting order.
This decision is clearly a good guide for those considering property settlements in which a Police Hurt on Duty Pension is part of the pool of matrimonial assets.
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