Lawton v Fernon [2011] NTCA 5


PARTIES:                                         MICHAEL LAWTON




                                                         JOAN PATRICIA FERNON






FILE NO:                                          AP 2 of 2009 (20908447)


DELIVERED:                                   24 JUNE 2011


HEARING DATES:                           7 APRIL 2011


JUDGMENT OF:                              MILDREN, SOUTHWOOD & BLOKLAND JJ


APPEAL FROM:                               MASTER LUPPINO




FAMILY LAW – DE FACTO RELATIONSHIPS – appeal – whether superannuation is “property of the parties” – whether allowance should be made for use of joint property after separation – method of valuation – whether superannuation contributions should be considered as “financial contributions to the acquisition of property” – whether inheritances are part of the pool of assets – appeal allowed


De Facto Relationships Act (NT), s 3(1), s 18

Property (Relationships) Act 1984 (NSW)


Fiket v Linco (1998) 145 FLR 456; distinguished


Chanter v Catts (2005) 64 NSWLR 360; Evans v Marmont (1997) 42 NSWLR 70; Kardos v Sarbutt (2006) 34 FamLR 550; Tyms v Williamson [2010] NSWCA 138; followed


In the Marriage of Harris (1991) 104 FLR 458; King v Kemp (1996) 127 FLR 279; Ottley v Chester (2010) 241 FLR 271; referred to





    Appellant:                                     R Galloway

    Respondent:                                  A Young



    Appellant:                                     Cecil Black Family Lawyer

    Respondent:                                  De Silva Hebron


Judgment category classification:    B

Number of pages:                             60






Lawton v Fernon [2011] NTCA 5

No AP 2 of 2009 (20908447)





                                                     MICHAEL LAWTON





                                                     JOAN PATRICIA FERNON








(Delivered 24 June 2011)



[1]       The respondent brought an application against the appellant for an adjusting property order pursuant to s 18 of the De Facto Relationships Act (NT) (the Act).  The application was heard by the Master who made an order that the property of the relationship be divided such that the respondent receives 46.25 per cent of the combined property and financial resources of the relationship and the appellant receives 53.75 per cent, as well as consequential relief.  The appellant has appealed the Master’s decision on a number of grounds, which I will discuss below.  In short, the appellant seeks to establish that the Master’s discretionary judgment has miscarried and seeks an order substituting for the order made, an adjusting property order of 60 per cent in favour of the appellant.  The respondent has filed a notice of contention which complains of an error in law which may need to be examined if the appellant establishes that the Master’s decision is vitiated by error.

The Facts

[2]       The following facts as found by the Master are not in dispute.  The relationship between the parties lasted over 20 years from April 1987 until 21 September 2007.  There are two children of the relationship: David, born 25 September 1991; and Kate, born 30 May 1997.  Although there is no finding as to the parties’ respective ages, it is not in dispute that the appellant was born on 25 February1951 and was aged 59 at the date of trial and that the respondent was born on 22 March 1962 and was aged 48 at the date of trial.

[3]       Both parties were in full time employment throughout the relationship except for two periods of 14 months and 28 months respectively when the respondent was off work or on maternity leave following the birth of the children.  The non-financial contributions in relation to the care for children and homemaker were approximately equal, except that during the periods following the children’s births, the respondent made a greater non-financial contribution, but, at least balancing that, the appellant was the sole source of family income during those periods.  The learned Master concluded, on those facts, that the non-financial contributions were equal.  There is no challenge to this finding.

[4]       After considering the facts relating to the employment earnings of the parties, the learned Master concluded that the employment terms and salaries of the parties over the whole term of the relationship were approximately equal.  There is no challenge to this finding.

[5]       The learned Master, in accordance with well-established authority,[1] sought to identify and value the property of the parties to determine which may be the subject of an adjustive property order.  His Honour arrived at a total net value of the property in the sum of $2,576,400 which included the value of the parties’ superannuation contributions, calculated at the date of separation, in the sum of $450,700 for the appellant and $216,000 for the respondent.  The other assets and liabilities were valued as at the date of trial.

[6]       The Master then took into account the financial contributions of the parties.  Apart from some specific items, his Honour found that the financial and non-financial contributions were equal.  The Master found that the appellant’s contributions, after setting off one item against another item of equal value and making other adjustments and allowances, totalled $302,264 and that the respondent’s contributions totalled $109,000.  The difference of $193,264 was calculated to be approximately 7.5 per cent of the net pool, which the Master found should be an adjustment made in the appellant’s favour.

[7]       Prior to trial, the Master found that the parties had already received all of the assets, except a house property, “the Parap property”, valued at $875,000, which the parties intended to sell.  The Master calculated that the appellant had received $1,081,250 less capital gains tax, totalling a net sum of $1,043,250.  His Honour calculated that the respondent had received $731,350, less capital gains tax, totalling a net sum of $658,150.  To achieve a just and equitable distribution, the Master concluded that if the Parap property sold for a net sum of $875,000, the respondent should received 61 per cent of the net proceeds of sale (with an appropriate variation depending on the selling price).  The way in which his Honour arrived at this calculation appears to be as follows:

Respondent’s share of net pool: 46.25% of $2,576,400



Less value already received

$   658,150


$   533,435

(61% of $875,000 is approximately $533,435)


Grounds of Appeal

[8]       Not all of the grounds of appeal were pressed at the hearing of the appeal and to some extent there was overlapping amongst the grounds.  I will deal with the grounds in the order in which counsel for the appellant, Mr Galloway, presented his argument.

Grounds 2, 3 and 4

[9]       The appellant’s submission was that the learned Master erred in including the parties’ superannuation contributions in the pool of assets for division amongst the parties.  The learned Master did not refer, in his reasons for judgment, to any authority in support of the proposition that superannuation could be included.  At the hearing before the Master, counsel for the respondent submitted that it could be included, whereas counsel for the appellant submitted that it could not be.  Neither counsel assisted the Court below by reference to any authorities, except for a reference to a reported decision of Thomas J in Fiket v Linco,[2] which does not discuss this issue.

[10]     At the hearing of the appeal, Mr Galloway referred us to the decision of the Full Court of the Family Court in King v Kemp,[3] where the Court , after considering the provisions of the Act and a number of authorities where the question was discussed, concluded that the trial judge had not erred by failing to include superannuation to the current value of the tangible assets of the parties, adding that “it may be that it would be open to her Honour to approach her exercise of discretion in this way, but she was certainly not obliged to”.[4]  In my opinion, King v Kemp[5] does not definitely decide the question. 

[11]     Counsel for the respondent, Mr Young, referred to Chanter v Catts,[6] a decision of the New South Wales Court of Appeal.  The legislation in New South Wales, the Property (Relationships) Act 1984, is in para materia to the Act.  In that case, the respondent’s superannuation fund was self-managed.  Hodgson JA said: [7]

He had considerable control over what can be put in or taken out of the fund and over the conduct of the fund; and there is little reason for treating his superannuation entitlements as different from ordinary investments.

[12]     Hodgson JA, who substantially agreed with Bryson JA, said that superannuation could be included in the identification and valuation of the property of the parties, but he went on to observe that:[8]

There may be good reasons for treating superannuation entitlements somewhat differently from other assets, inter alia, because of limitations on a beneficiary’s control over and access to this asset; but that may depend upon the circumstances.

[13]     Bryson JA said, that the respondent’s superannuation entitlements were both a financial resource and were also property and that it was within the Court’s power to make an order adjusting an interest in an entitlement relating to superannuation, including an entitlement which has not yet, at the time of making the order, reached the stage where it can readily be converted into money.[9]

[14]     All members of the Court were unanimous in rejecting previous authority to the effect that superannuation entitlements were not property and could only be taken into account in determining what order is appropriate only if and to the extent that the other party has contributed to that entitlement.[10]

[15]     However, in the later case of Tyms v Williamson,[11] the New South Wales Court of Appeal held that although superannuation can be taken into account under both limbs of the definition of “financial resources” and “property”, it was “inappropriate” to include the amounts standing to the credit of the superannuation accounts in circumstances where the fund was such that the person concerned had no control over the fund, no present entitlement to the fund and would not have had any entitlement for years to come.  In such a case, it was wrong to include those amounts as if they were assets under that person’s control and available to that person.[12]  On the other hand, because there was an agreement that the appellant would work outside the home to earn income whilst the respondent would make a non-financial contribution within the house, it was appropriate to have some regard to the amount of the increase in value of the superannuation during the relationship.[13]  This, by the way, was similar to the approach taken by Gleeson CJ and McLelland CJ in Eq in Evans v Marmont,[14] where there was a joint retirement plan between the parties that the appellant’s income was to be used to meet household and living expenses, thereby allowing the respondent’s disposable income to be devoted towards building up his savings and investments (which included superannuation) and accordingly allowance needed to be made for this in the appellant’s favour.

[16]     I consider that this Court should follow Chanter v Catts and Tyms v Williamson unless we are persuaded that those decisions are plainly wrong.  The definition of “property” contained in s 3(1) of the Act is very wide and includes present, future or contingent interests in property as well as choses in action.  In In the Marriage of Harris,[15] the Full Court of the Family Court said that “it can be said generally that an entitlement under a superannuation is a chose in action and property to that extent”.  However, the Court noted that the Full Court in In the Marriage of Perrett,[16] said that except for pension entitlements that had already fallen due, it was “impossible to characterise the husband’s entitlement to a continuing pension as a chose in action referable to some notional capitalised figure”.  In Chanter v Catts, Bryson AJ considered that the superannuation fund in that case was a chose in action.[17]  Whether or not the superannuation funds in this case are choses in action in the sense that they confer entitlements enforceable by legal action cannot be decided in the abstract and without resort to a consideration of the relevant statutes and documents relating to the funds.

[17]     The other basis for considering the funds as “property” is that they confer a contingent interest in respect of property.  In Chanter v Catts,[18] Bryson AJ held that the superannuation fund in that case also fell into that category.  During argument in this Court, Mr Galloway conceded that the funds were contingent interests in property, a concession which I think he was very probably right to make.

[18]     The contrary argument is a matter referred to by the Full Court in King v Kemp.[19]  If the intention of the legislature was to include superannuation as “property” why not specifically do so?  The express inclusion of prospective superannuation entitlements in the definition of “financial resources” suggests a legislative intent that such entitlements are not within the definition of “property”.  However that may be, I am not persuaded that the decisions in Chanter v Catts and Tyms v Williamson were plainly wrongly decided and should not be followed.  However, if superannuation is included in the definition of “property”, in my opinion the Court must be careful not to give double weight to the funds by also taking it into account as a financial resource.  Whether it is better to treat it as one of the other will depend on the circumstances, as Tyms v Williamson demonstrates.

[19]     The facts of the present case relating to the parties’ superannuation are mentioned only briefly in the Master’s judgment.  The appellant had joined three separate funds valued at separation as follows:

Commonwealth Superannuation Scheme (CSS)





$ 61,147.00



[20]     The respondent had joined two funds valued at separation as follows:

Commonwealth Superannuation Scheme (CSS)



$ 28,828.00



[21]     Other findings include:

1.   Both parties took advantage of their entitlement to salary sacrifice into superannuation, “more so in the case of the appellant”.

2.   The appellant sold mining shares held in his name in 2005 for $163,069.  Some of the proceeds of sale, totalling $72,069, were paid into the appellant’s AGEST superannuation fund account.

3.   The appellant’s CSS superannuation account is a defined benefit scheme, the main benefit of which is an indexed pension based on years of service and final salary.

4.   The NTSS fund is a non-contributory fund “apparently given to the appellant in lieu of a pay increase at some point”.

[22]     A great deal of information concerning the respective superannuation accounts of both parties was tendered in evidence at trial, about which there are no findings of fact.  It was common ground at the hearing of the appeal that each of the parties’ superannuation accounts were not privately self-managed funds, but were funds established by either the Commonwealth or the Northern Territory governments.  Both parties initially joined the Commonwealth Superannuation Scheme in 1984 or 1985 some two or three years before the relationship commenced.  There is no finding as to whether or not either party had any control over their interests in the funds either at the date of separation or at the date of trial.  The appellant was still six years from the normal retiring age at the date of trial, whilst the respondent was still employed and at the age of 48 and had many years to go before she reached a retiring age.  It is therefore unlikely that she had any access to the funds in her account.  I should add that we were not provided by either party on the hearing of the appeal with any information concerning the legislation, regulations or any other relevant documents which would assist us to find out if and when either party could have access to any of these funds.

[23]     This being the state of the evidence, it is my opinion that the learned Master was in error in treating the superannuation funds of the parties as property, as he apparently did, particularly as:

1.   the appellant had paid $72,069 from the proceeds of sale of the shares (which were mostly from his own contributions) into his fund in circumstances where the respondent’s interest in the shares was relatively small and most of the proceeds of the sale of the shares were contributed by the appellant towards the benefit of the parties jointly;

2.   it is fairly clear, following the reasoning in Tyms v Williams that it would be inappropriate to involve the respondent’s interest in her superannuation as “property”, given her age; and

3.   it is far from clear that the appellant had any control over his own superannuation funds at the time of separation (which was the date chosen for valuation purposes), or at the time of trial.

[24]     It was also submitted by Mr Galloway for the appellant that the Master erred by his approach to the valuation of the superannuation funds because his Honour valued the funds at as at the date of separation, whereas all other assets were valued at the date of trial.  The reason for this was because no evidence was adduced at trial as to the values of the funds, except the values as to the balance of the accounts which in the case of the appellant (at least so far as the AGEST account is concerned) was approximately $307,000 “at a time well after separation”.  Similarly, the amount standing to the appellant’s credit in an NTSS fund of $61,000 approximately was the value of the benefit as at February 2010, some two years and five months after separation.  Some calculations were done by counsel for the respondent at trial in relation to the AGEST account to adjust it to the date of separation.  According to his Honour’s reasons, the respondent’s calculation reduced the value at separation to $264,000, which the Master apparently accepted; yet the figure shown in the list of assets is $251,159.  It is not clear why the figures are different.

[25]     I think that if it were proper to include the value of the superannuation of the parties as an available asset, the values should have been calculated, if at all possible, as at the date of trial.  In any event, it is difficult to see why the respondent’s values are calculated at the date of separation and the appellant’s at differing dates.  The Master suggested that the fault for this lay with the respondent for not calling actuarial evidence, but it is hard to see how that kind of evidence could have assisted.  The difficulties attendant on the valuation of the superannuation funds are well illustrated by the judgment of Bryson JA in Chanter v Catts[20] and by the observations in  King v Kemp[21] of the practical difficulties of evaluating the entitlements in many cases.  Clearly that was the case here, particularly in relation to a defined benefit scheme and it is another reason why these values should not have been included.

[26]     I would uphold these grounds of appeal.

Ground 5

(a) and (b) – The value of the appellant’s guarantee and the rental value of the Parap property

[27]     Ground 5 complains of errors made in calculating and making adjustments for certain contributions made by the individual parties.  When the parties separated on 21 September 2007, the appellant purchased a property at Moil for approximately $440,000 (including $15,000 paid for stamp duty and other purchase costs).  The respondent borrowed the entire sum of $440,000 which was secured by a mortgage over a property in Surrey Hills, NSW, which the parties jointly owned and by a personal guarantee given by the appellant.[22]  At that stage, the parties had already agreed to sell the Surrey Hills property.  Apparently the Surrey Hills property was sold in December 2007 for a net sum of $782,238.09.  Half of this sum was received by each party ($391,119.05), of which $275,587.04 was paid by the respondent “into her home loan”, which presumably means in partial discharge of the mortgage over the Moil property.[23]  The respondent’s evidence was that she continued to live in the Moil property until mid 2009 when she purchased a property in Woodend, Victoria, for $187,701.73.[24]  According to the respondent, she borrowed about $190,000 to $200,000 to pay for this property, but the evidence relating to this purchase, the sale of the Moil property and the subsequent purchase of a property at Pascoe Vale is confusing and at times incoherent.  No findings of any kind were made by the Master relating to these sales and acquisitions.  In particular, there is no finding as to how much interest the respondent paid in order to finance any of the homes in which she lived.

[28]     The learned Master made an adjustment in the appellant’s favour of $2,000 for the appellant’s indirect contribution, being the guarantee over the Moil property which he had provided.  He also allowed a contribution in favour of the respondent of $30,000 being the net value of half the rental value of the Parap property in which the appellant had lived for approximately three years (but which was a jointly owned property).  The appellant challenges both of these allowances, notwithstanding that the allowance of $2,000 is in the appellant’s favour.  At trial, no objection was taken in principle to either of these adjustments by counsel for the parties.

[29]     Mr Galloway submitted that the appellant was, as a matter of law, entitled to the occupation and enjoyment of the whole of the Parap property as a joint owner.  This may be so and the facts suggest that, because the Parap property was not sold immediately, the respondent was prepared to allow the appellant to remain in sole occupation of it as his residence.  Mr Galloway submitted that if the respondent has rented elsewhere and thus depleted some of her capital that may have been a matter which could be taken into account.  I am unable to see why it should be any different if the respondent purchased a property on borrowed funds on which she had to pay interest.  Because the actual borrowings were not available to the Court, there were really only two possible ways of making an adjustment.  One was the method adopted by the Master.  Another might have been to calculate the net loss of interest on a half share of the expected net proceeds of sale, allowing for income tax.  We were not referred to any authorities directly on the point except Chanter v Catts,[25] where Bryson JA held that contributions made after the separation could be taken into account.[26]  It seems to me that by not forcing the sale of the Parap property, the respondent made a non-financial contribution towards the conservation of the Parap property and towards the appellant’s financial resources in terms of s 18(1)(a) of the Act which benefited the appellant in two ways.  First, it enabled him to continue to reside there without having to find somewhere else to live and commit resources towards the purchase or rent of another home; and secondly, to the extent that there was a further capital gain in the value of the property over the three year period, he got the benefit of half of it.  In the circumstances, the adjustment made by the Master was fair and reasonable and I would not allow the appeal on this ground.  Similarly, the small allowance made for the guarantee was not unreasonable and I see no reason to alter it.

(c)       The value of the appellant’s shares

[30]     The next issue under this ground was the approach taken by the Master in valuing the appellant’s contribution to the assets of the parties through share transactions.  The facts were that at the commencement of the relationship the appellant owned approximately 120,000 shares in a mining company.  Through a dividend investment scheme, extra shares were obtained bring the total to 129,727.  In 1996, a further 17,142 shares were purchased from joint assets, but put in the appellant’s name, bringing the total holding to 146,869 shares.  A series of takeovers resulted in the shares being transposed into shares in another company.  In 2005, the entire shareholding was sold for $165,069.

[31]     These proceeds were expended by the appellant as follows:

1.   $52,500 in purchasing Auzex shares in July 2006.

2.   $6,000 invested in Telstra shares in November 2006.

3.   $32,500 applied in purchasing further Auzex shares in July 2007.

4.   The balance, $72,069, was paid into the appellant’s AGEST superannuation account.

[32]     It follows from this that $91,000 was reinvested in shares in the appellant’s sole name, of which only a small percentage of the total was purchased from joint funds.  After making allowances for capital gains tax (also paid from joint funds) and other factors, the Master arrived at a contribution in favour of the appellant of $89,000 for adjusting order purposes.  I am not persuaded that this figure was in the end result too low.  Counsel for the appellant submitted that the figure was wrong because, when sold, 88 per cent of the total proceeds amounts to $143,500 and half of 12 per cent amounts to a further $9,784 making a total of $153,284 and that sum would be the correct amount of the adjustment.  There are two problems with this calculation.  First, the approach to the valuation of the shares undertaken by the Master was affected by adjustments to the values of the shares with which the proceeds were invested as at the date of separation, which was two years after the shares were sold for $163,069.  Secondly, allowance had to be made for the fact that $72,069 was paid into the appellant’s AGEST superannuation account.  It is not therefore a simple matter, as his submission suggests, of allowing something in the order of $143,500, particularly as the valuation cannot include the $72,069 paid into the AGEST account.

(d)       The value of the respondent’s inheritance

[33]     The appellant complains that the learned Master erred in his acceptance of the respondent’s contention that an inheritance from the respondent’s mother’s estate was invested in the Surrey Hills property and worth $79,000 at the date of settlement.  The facts which the learned Master seems to have accepted were based on a calculation submitted by counsel for the respondent at trial.  The respondent inherited $40,000 in 1990.  About $7,000 was used to repay debt on the mortgage of the parties’ then home at 40 Doxas Road, Humpty Doo.  The balance of $33,000 was used to purchase a one third share in the house at Surrey Hills.  The other two third shares were later bought out by the appellant and the respondent using joint borrowings secured by a mortgage.

[34]     The purchase price of the Surrey Hills property was $225,000.  The parties spent $65,000 shortly thereafter by adding a deck, making the total expenditure $290,000.  In December 2007, the property was sold for $915,000 realising a net amount of $784,072.  The proceeds were then divided equally between the parties.  Applying the respondent’s initial contribution of $33,000 as a ratio of $290,000 is a figure of 11.3 per cent.  If the same ratio is applied to the net sum of $784,072, the result is a contribution of $88,600, from which a proportional allowance of capital gains tax payable on the sale must be deducted, resulting in a figure of $79,000.  The learned Master accepted this calculation and set it off against the appellant’s contribution of $89,000 for the shares, resulting in a net contribution in the appellant’s favour of $10,000.

[35]     Counsel for the respondent had submitted before the Master and in this Court that the respondent’s initial contribution of $33,000 was the “seed” without which the Surrey Hills property could never have been purchased.  The Master accepted this and I am unable to see why he was wrong to do so.  It was submitted by Mr Young that this was a “strategic investment”, to which the Master was entitled to give weight in the exercise of his discretion, referring to Kardos v Sarbutt.[27]  There is force to this submission.  An initial capital sum provided by one party to purchase a joint asset which has appreciated in value and without which the asset would never have been acquired in the first place is, I think, in a special position and its value should reflect the time value of money.  I cannot see how any countervailing contributions by the appellant have completely overtaken this early contribution, as submitted by Mr Galloway, except to the extent allowed by the Master.  I reject this submission.

[36]     Finally, it was put that the approach of the Master was highly artificial, dealt with contributions inconsistently and was likely to produce error.  No error having been established I would dismiss this ground.

Ground 6 – The contribution made by the appellant’s inheritance

[37]     This ground asserts that the learned Master underestimated the value of the appellant’s late contribution of an inheritance of $219,000 from the appellant’s mother’s estate.

[38]     The facts were that in 2004, the appellant inherited $219,000 from this mother’s estate.  The funds were used to buy shares, to repay a mortgage debt of $91,000 off the Parap home loan and to retire $50,000 off the Surrey Hills property loan.[28]  The transactions included the purchase of some woodlots which were ultimately valueless.  It is difficult to reconcile the figures completely, but the Master referred to the respondent’s calculation as amounting to 8 per cent of the net pool as found at paragraph [42] of the Master’s judgment, “after a rounding to factor in the respondent’s contribution to the mining shares”.  The learned Master considered that this value was too low because it did not adequately reflect the value of the mortgage debt reduction to the family finances as a whole and adjusted the value to 8.2 per cent.[29]  It appears that the Master must have accepted the respondent’s assertion that the assets purchased from the inheritance equated to $212,514.  I note that $212,514 is approximately 8 per cent of the net pool of $2,576,400.  This figure would increase to 11 per cent if superannuation is excluded from the net pool (total pool $1,909,600).

[39]     However, when one examines these figures more closely, the respondent’s evidence, as set out in annexure A to her affidavit,[30] was that the monies from the estate were expended as follows:


On 2000 Schaffer shares purchased on 13/07/2005 in joint names


To retire debt for the Parap property loan


To retire debt for the Surrey Hills loan


To purchase 256000 Ausex shares in joint names



[40]     In Annexure A to the respondent’s affidavit, the respondent’s evidence was that the values of those assets at trial were reduced as follows:

Schaffer shares



Parap property loan



Surrey Hills loan



256,000 Ausex  shares










Less withdrawn to purchase woodlots





[41]     The Master adopted a higher value for the Ausex shares ($0.46,[33]) which would mean that the 256,000 shares were worth $117,760.  The difference between the two values is $92,160, which would increase the total value to $250,154.

[42]     To this must be added the value to the parties of the savings in interest because of the reduction of the mortgages.

[43]     It is entirely unclear how the figure of $212,514 was arrived at, although counsel submitted that some of the funds went into the appellant’s superannuation.  If that is the reason for the discrepancy and explains why the sum of $212,514 was accepted by the Master, it was incorrect not to include a larger figure if superannuation is part of the pool of assets, but correct if it is not.[34]  There is no finding (and no evidence that I can find) to suggest any of the money found its way into the appellant’s superannuation.

[44]     In any event, that was not the basis of the calculation when the respondent gave her evidence.[35]  The respondent’s counsel submitted at trial that, with the rise in the value of the Ausex shares, the figure of $180,000 odd should go up to $238,000 odd, less $26,000 withdrawn to purchase woodlots now worthless, which resulted in the sum of $212,154.

[45]     Counsel for the respondent submitted that counsel for the appellant at trial did not cross-examine on this issue and, it would appear, allowed counsel for the respondent to give evidence from the Bar table.  Presumably, he did so because he then accepted the correctness of the figures.  No submission was made at trial that this figure was wrong.

[46]     Nevertheless, I consider that on the evidence and findings of the Master, the figure of $212,154 was too low by an amount of at least $38,000, plus an indirect contribution of half the interest on the two loans which were reduced.  I have no information as to how much this was.  I note that the Master referred to the savings in interest and increased the 8 per cent to 8.2 per cent to reflect this factor.

[47]     Increasing the value of the inheritance to $250,000 would result in a figure of 13 per cent of the net pool if superannuation is excluded.  An adjustment of 0.2 per cent to 13.2 per cent to represent the value of interest savings would be warranted.  I would therefore allow this ground of appeal.

The remaining grounds and the Notice of Contention

[48]     The remaining grounds of appeal have been dealt with in discussing the other grounds of appeal.  It remains to deal with the notice of contention which complains that the Master erred in refusing to balance the financial and non-financial contributions of the parties.  The Master found that the non-financial and financial contributions of the parties were equal, except for the financial contributions which his Honour adjusted to arrive at the net result.  These findings were not attacked by Mr Young.  I am not persuaded that the respondent has demonstrated any error in this regard and I would dismiss the notice of contention.


[49]     If the superannuation of the parties is excluded from the net pool, the value of the net pool is reduced to $1,909,600.  Of these assets, the appellant has already received assets to the value of $592,550 and the respondent $442,050, leaving the assumed value of the Parap property ($875,000) unallocated (excluding in both cases the value of their superannuation entitlements).

[50]     The approach of the Master was to arrive at an adjustment in the appellant’s favour of 7.5 per cent calculated on the following basis:

Value of the appellant’s contributions re the inheritance



Value of the defendant’s contributions



          Occupation of Parap house



          Less difference between respondent’s inheritance and appellant’s mining shares






Less value of guarantee

-$  2,000




 = 0.7%

8.2% - 0.7% = 7.5%



[51]     On the assumptions that each party retains the assets already divided and the respondent should received 46.25 per cent of the net pool and the appellant 53.75 per cent and assuming that the Parap property sold for a net sum of $875,000, the Master estimated that 61 per cent of the net proceeds of sale of the Parap property would go to the respondent:

Value of assets received by respondent already


Less capital gains tax






Value of pool


Less capital gains tax


Net value of pool




46.25% of net pool


Less value received




which represents 61% of $875,000




[52]     Adopting the same methodology as the Master, but removing the superannuation from the net pool and allowing for a lower amount for the benefit of the appellant’s inheritance, achieves the following results:

Value of appellant’s contribution re the inheritance


As a percentage of net pool of $1,909,600 adjusted by 0.2%




Difference between value of respondent’s contributions and appellant’s contribution


As a percentage of net pool of $1,909,600




13.2% - 0.09% = 12.3%




[53]     This represents an approximate division of 56 per cent of the net assets in favour of the appellant.

[54]     The question then remains whether any further adjustment should be made bearing in mind the different contributions made by the parties towards their superannuation entitlements.  In my opinion, this should be answered in the negative.  There is no evidence that either party made any direct financial contributions towards each other’s superannuation.  Were there any indirect financial contributions?  It was not submitted at trial that there was a joint retirement plan of the kind discussed by Gleeson CJ and McLelland CJ in Eq in Evans v Marmont.[36]  It was not the case that the respondent made any indirect contribution to the appellant’s superannuation by meeting more of the running costs of the home so as to enable the appellant to save by investing in his superannuation.  There was a submission at trial to that effect, but the learned Master did not accept it, or at least made no finding in the respondent’s favour in that respect.[37]  The principal finding was that non-financial contributions were equal.[38]  That finding has not been attacked during the hearing of the appeal.

[55]     At trial, counsel for the appellant sought a division of 55 per cent in favour of the appellant, based on a global holistic approach.  A similar submission was made by Mr Galloway, who was critical of the Master’s methodology.  Reference was made to Kardos v Sarbutt,[39] where the Court of Appeal of New South Wales accepted that:

the Court is not required to undertake a reductionist approach analogous to the taking of partnership assets by examining every alleged ‘contribution’ of the kinds referred to in the section with a view to putting a monetary value on each in order to reach an accounting balance value one way or the other, then to be eliminated by the requisite financial adjustment; rather the Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind.

[56]     Nevertheless, an asset by asset approach and an approximate valuation of specific identifiable contributions easily capable of valuation is a worthwhile starting point in this case.  I think, exercising the discretion afresh, that an overall apportionment of 56:44 in favour of the appellant is fair and reasonable.

[57]     Readjusting the Master’s calculation in para [51] above:

44% of net pool of $1,909,600


Less value received






$398,174 represents 46% of $875,000




[58]     In the result, I would make the following orders:

1.        Appeal allowed.

2.        Notice of Contention dismissed.

3.        Paragraphs 1, 2 and 3(c) of the Order of the Master dated 23 December 2010 are set aside and in lieu thereof I would make the following orders:

1.        That the property of the relationship shall be divided such that the Plaintiff receives 44 per cent of the property of the relationship and the Defendant receives 56 per cent.

2.    That the net value of the property of the relationship exclusive of the property at 36 Drysdale Street, Parap (“the Parap property”) in the Northern Territory is $1,034,600.

3(c) The balance to be divided between the Plaintiff and Defendant so that the Plaintiff receives 46 per cent of the totality of the combined property of the relationship and the Defendant receives 56 per cent of the totality of the combined property of the relationship.

4.        The remaining paragraphs of the Order of the Master dated 23 December 2010 are to remain unchanged.

5.        That:

(a)     the Appellant file and serve written submissions as to costs within fourteen (14) days;

(b)     that the Respondent file and serve its written submissions on costs within a further fourteen (14) days; and

(c)     the Appellant is to file and serve any Reply to the Respondent’s submissions within a further seven (7) days.

6.        The costs of the appeal are reserved pending consideration by the Court of the submissions referred to in paragraph 5 above.


[59]     I agree with the judgment of Mildren J.



[60]     This is an appeal against the learned Master’s decision determining a property adjustment application made under s 18 De Facto Relationships Act (NT). 

[61]     The Master’s Reasons for Decision, delivered on 23 December 2010 (Reasons), ordered the combined property and financial resources of the parties be divided.  It was ordered the Plaintiff, (Respondent in these proceedings) receive 46.25% and the Defendant, (Appellant in these proceedings) receive 53.75% of the combined property and financial resources.  Ancillary and enabling orders were made dividing the proceeds of the sale of the principal residence during the course of the relationship, (the Parap Property) which for the purposes of the proceedings was valued at $875,000.  As both parties had already received the assets, save for the Parap property yet to be sold, His Honour calculated the Respondent would receive 61% of the proceeds of sale of the Parap property.[41]  Finally, orders were made to give effect to the overall division, largely immaterial for the purposes of the Appeal.[42]

[62]     The Appeal alleges error in both the general approach taken to the exercise of the Master’s discretion, (concluding in the apportionment noted above), and the particular approach taken to the value of specific property or financial resources and adjustments made accordingly.  A significant  contention of the Appellant is that the superannuation interests of the parties ought not to have been included in the pool as property and the adjusting order should have been calculated without the inclusion of superannuation interests.

General Circumstances and Findings

[63]     I will deal later in these Reasons with the particular approach to superannuation however in terms of the general circumstances of the Appellant and Respondent and the less contentious findings made by the Master, the relationship commenced in April 1987 and the parties separated on 21 September 2007.  There are two children of the relationship.[43]  The Appellant was born in 1951 and the Respondent in 1962.  The Master found the non financial contributions as between the parties were equal.[44]  In broad terms the Master found the employment terms and salaries of the parties over the whole of the term of the relationship were approximately equal.[45]  The Master’s reasons indicate that if not for identified separate financial contributions to be attributed to individual parties he would have found an equal distribution to be just and equitable having regard to the factors stated in s 18 De Facto Relationships Act (NT). 

[64]     After considering the significant separate financial contributions that overall were weighed in favour of the Appellant, the Master determined a net overall adjustment should be 7.5% in the Appellant’s favour.  He made no further adjustment on account of balancing the financial and non-financial contributions given that he had found they were sufficiently equal.[46] 

[65]     The specific financial contributions the Master considered should result in adjustments in favour of the Appellant were for mining shares the Appellant owned prior to the relationship, transformed in various ways during the relationship including purchasing other shares, and a contribution of $57,000 to the Appellant’s AGEST account valued ultimately at ($89,000);[47] a gift from the Appellant’s parents which after various items of expenditure were accepted ultimately was not ascribed a value as it was set off against an equal inheritance of the Respondent’s: (both nominated contributions were said to have a value of around $10,000);[48] the Appellant’s inheritance from his mother’s estate utilised in various ways for joint purposes was valued at 8.2% of the net pool ($211,264);[49] and the guarantee given by the Appellant to the Respondent that enabled her to purchase a property ($2,000).[50]  Clearly the Master considered the Appellant’s financial contributions to be significant in the exercise of the discretion. 

[66]     The separate financial contributions made by the Respondent were an inheritance from her mother’s estate, a resource given significant weight as it enabled the parties to jointly purchase another property (the Surry Hills Property) that eventually sold for significant net proceeds shared between them ($784,100).  This inheritance was valued by the Master at $79,000.[51]  The Master allowed an indirect contribution in favour of the Respondent by reason of the Appellant’s continued occupation of the principal residence ($30,000).[52]  A number of these assets will be discussed later in these reasons.  Based on his assessment of the evidence the Master considered the property pool comprised the following assets:

(1)       The Parap property                                                         $875,000.00

(2)       The Surry Hills property                                                 $784,100.00

(3)       The Katherine property                                                  $106,500.00

(4)       The chattels                                                                    $42,700.00

(5)       Plaintiff’s superannuation

(i)      CSS             $187,254.00

(ii)    AGEST        $28,828.00

                                                $216,082.00                                      $216,100.00


(6)       Defendant’s superannuation


(i)     CSS            $138,385.00

(ii)    AGEST        $251,159.00

(iii)   NTSS          $61,147.00

                  $450,691.00                                      $450,700.00

(7)       Great Southern woodlots                                                Nil

(8)       Telstra, Schaeffer, Wesfarmers and Comsec Trading shares                                                                                                                $28,600.00

(9)       Coles, Telstra and Schaffer shares                                 $17,700.00

(10)     Auzex, Coles and AMP shares                                        $22,800.00

(11)     Scholarship fund                                                            $39,000.00

(12)     Auzex shares                                                                  $104,400.00

Total                                                                                          $2,687,600.00

[67]     His Honour noted the proceeds of the Surry Hills property and Katherine property as well as certain personal property had been distributed equally between the parties.  The shares specified in item (8) represented the proceeds of sale of shares where the proceeds had gone to the Appellant and those in item (9) to the Plaintiff.  The shares in item (10) had been distributed equally.  The scholarship fund was noted, treated as a divisible asset however the Master noted the parties could come to a different arrangement should they wish as they had expressed a desire to continue the fund.

Grounds 2, 3 and 4 - The Master erred by including the superannuation interests of the parties when none of the interests was property and not capable of being disposed of by order; attributing value to superannuation without proper evidence of value; not assessing value at the time of trial.[53]

[68]     I am not persuaded the learned Master erred in the approach taken to the superannuation interests of the parties as asserted by the Appellant.  The learned Master was required to make an adjustment order in accordance with s 18 De Facto Relationships Act (NT):

18      The order for adjustment

(1)     The order which a court may make under this Division with respect to the property of de facto partners or either of them is such order adjusting the interests of the partners in the property as the court considers just and equitable having regard to:

(a)     the financial and non-financial contributions made directly or indirectly by or on behalf of the partners to the acquisition, conservation or improvement of any of the property or to the financial resources of the partners or either of them; and

(b)     the contributions (including any made in the capacity of homemaker or parent) made by either of the partners to the welfare of the other partner, or to the welfare of the family constituted by the partners and one or more of the following:

(i)      a child of the partners;

(ii)    a child accepted by the partners or either of them into the household of the partners, whether or not the child is a child of either of the partners; or

(iii)   any person dependent on the partners who has been accepted by the partners or either of them into the household of the partners.

(2)     A court may make an order in respect of property whether or not it has declared the title or rights of a de facto partner in respect of the property.

[69]     “Financial Resources” relevantly includes a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits be provided.[54]

[70]     “Property”, includes:

(a)     real and personal property and any estate or interest (whether present, future or contingent) in real or personal property;

(b)     money;

(c)     any debt or cause of action for damages; and

(d)     any other chose in action or right with respect to property.[55]

[71]     It is clear from the reasons, the learned Master grappled with evidential problems concerning valuation of the superannuation funds, however despite those issues, the statute required him to have regard to superannuation at least as a financial resource.

[72]     As pointed out on behalf of the appellant, there is no provision equivalent to the “splitting” provisions that are now available under the Family Law Act (Cth).  Part VIIIB Family Law Act (Cth)[56] now grants power to the Family Court and other courts exercising jurisdiction under the Family Law Act (Cth) to split superannuation in the context of its powers to settle property of the marriage.  Superannuation is now clearly treated as property of the marriage.  The scheme also allows parties to bind superannuation trustees to an order or agreement made.  Regulations provide a range of mechanisms including rules for valuing superannuation interests.[57]

[73]     Given the complexity of the spectrum of arrangements and taxation liabilities of superannuation funds that may exist, a comprehensive package of measures support that relatively new regime.[58]

[74]     The comprehensiveness of the relatively new Family Law Act (Cth) provisions and associated legislation,[59] stands in stark contrast to the De Facto Relationships Act (NT) and analogous legislative regimes[60] where superannuation is expressly included but as a “financial resource”.  Clearly the De Facto Relationships Act (NT) does not provide the mechanisms for “splitting” superannuation, but equally in my view superannuation entitlements are required to be taken into account when the court is asked to make an adjustment order under s 18 De Facto Relationships Act (NT) “adjusting the interests of the partners in the property …”

[75]     The learned Master did not attempt to adjust or “split” the superannuation of the parties.  He took it into account as part of a multi-faceted approach to ensure a just and equitable adjustment as he was required to do.

[76]     On appeal, counsel for the appellant submitted that when dealing with superannuation the position and the problems under the De Facto Relationships Act (NT) are similar to those encountered in the Family Law Act prior to its amendment[61].  In my view the Master has approached the problem of superannuation in the context of a just and equitable adjustment in a manner not dissimilar to the approach of the Family Court in previous times.  His approach was consistent with that taken in the New South Wales Supreme Court dealing with s 20 Property (Relationships) Act (NSW), a provision acknowledged to be materially the same as s 18 De Facto Relationships Act (NT).  Given superannuation (depending on the type of fund and the access and control exercised over it), is at least as a financial resource, it must be “had regard to” in more than a manner of simply being noted and put to one side.  Whether the particular superannuation funds in this case, (and the types of fund within this case vary), are “property” or a “financial resource”, they are part of the general assets, (although because of their special nature may be treated differently), acquired during the course of the relationship between the Appellant and the Respondent.

Relevant Case Law

[77]     A number of approaches can be identified from the relevant cases in comparable jurisdictions.  The first is that superannuation entitlements should be treated solely as a financial resource and not as property, hence in relation to any adjustment order the superannuation is recognized by adjustments to the interests of other property that is clearly vested with the parties at the time of the order.  In Green v Robinson,[62] (although different approaches to the question of the characterisation of superannuation can be discerned), all members of the Court found superannuation entitlements must be taken into account when determining a “just and equitable” order adjusting property interests.[63]  The presiding Master who tried the matter at first instance was held to be in error for not doing so.  That would appear to be the sole significant point of unanimity in Green v Robinson.  Powell JA held the only “property” that may be affected directly by an adjustment order was property vested in the possession of a party at the relevant time, however if the Court thought it appropriate to recognise a contribution to the acquisition of superannuation it could do so by making some provision out of other vested property.[64]

[78]     The second approach considers entitlements to superannuation as both a financial resource and property.  As property, superannuation conceivably could be susceptible to an adjustment order.  In Green v Robinson, Cole JA, after setting out the definitions of “financial resources” and “property” said “It is clear that superannuation entitlements, whether present or future, fall within the definitions of financial resources, and property”. [65] 

[79]     In Chanter v Catts[66] Hodgson JA concluded superannuation entitlements should be included in the three step process accepted as governing the exercise of jurisdiction in a particular way that does not include contributions to the superannuation:[67]

In my opinion, superannuation entitlements should be included in the assets considered in step (1) of that process; and a determination in step (3), concerning whether and to what extent the order should affect superannuation entitlements, does not depend on contributions considered in step (2) being identified as direct or indirect contributions to those superannuation entitlements.

There may be good reasons for treating superannuation entitlements somewhat differently from other assets, inter alia, because of limitations in a beneficiary’s control over and access to this asset; but that may depend upon the circumstances.  There may be a difference between (1) an employee whose wages have been reduced to the extent of compulsory deductions, giving rise to the superannuation entitlements in a large fund in which the employee has no control, on the one hand, and (2) a self-employed person who has considerable control over what amounts are invested and perhaps over the fund itself, as well as over what may be withdrawn, at least after passing the age of 55, on the other hand.  In the case of the latter, the superannuation entitlements may not be very different from other investments.

[80]     Bryson JA held:

In my opinion, the respondent’s superannuation entitlements, which clearly are a financial resource having regard to the definition in       s 3(1), are also “property” within the widely extending definition of inclusion also found in s 3(1); that definition extends to any present, future or contingent interest in personal property and money, any other chose in action and any right with respect to property.  It is within the court’s power to make an order adjusting an interest in an entitlement relating to superannuation, including an entitlement which has not yet, at the time of making the order, reached the stage where it can be readily converted into money.  This expression of opinion is of limited importance to the present case because the Master’s orders adjusting interest in property did not alter any interest in any right related to superannuation, but declared “… That the parties are each entitled to retain their superannuation which is held under their own names, to the exclusion of the other party”.  However the availability of resources relating to superannuation funds entered into the Master’s thinking in the process of deciding what adjustments of interest in other property he should order; and I regard this as appropriate.

[81]     There appears to be substantial support for dealing with superannuation entitlements by including them in the assets considered when identifying and valuing the property of the relationship and a consequential adjustment order not dependant on the particular contributions made to superannuation.  The adjusting order is to be treated as the exercise of a wide discretion and is not dependant on identifying a link between an item of property and the adjusting order.  At the same time, the special nature of interests in superannuation must be considered as most funds will not vest until retirement; some funds may comprise a pension and the beneficiary may have little or no control over them; others may be akin to other personal investments where the fund beneficiary exercises a significant degree of control over the interest.

[82]     In King v Kemp,[68] the Family Court exercised the cross-vested jurisdiction of the Supreme Court of the Northern Territory dealing with s 18 De Facto Relationships Act (NT).  The de facto husband had substantial superannuation benefits and the wife did not.  The Court at first instance (Murray J) found the husband’s entitlement was a financial resource and the court was limited to awarding the wife an increased share of other property. 

[83]     The Full Court noted that at first instance Her Honour made findings about the parties’ property and financial resources.  Under a heading “Assets of the Parties”, Her Honour listed “1. Superannuation” and then a number of other assets.  The Full Court pointed out that a heading such as “assets” should not conclusively be indicative of a determination to deal with the superannuation as “property”.  Later in the Judgement, the Court said Her Honour was not intending by use of the term “Assets of the Parties” to convey that it dealt only with “assets” properly so-called, even less “property”, but only that by use of the term she would, amongst other things, identify those assets and their values.[69] 

[84]     I do not regard the Master’s identification of superannuation under a list of “assets” nor even suggesting they are “property” as determinative of a view that he was treating the superannuation as “property”.  There is a tendency in cases of this kind to use the terms “property” and “financial resources” interchangedly.  Clearly once other assets including the Parap property were sold the division could take place as ordered without “splitting” the superannuation.  In this particular case, it mattered not whether the superannuation was characterised as “property” or as a “financial resource”.  It could properly be taken into account as part of the overall adjustment where other property could satisfy the outstanding sum.  Section 18 De Facto Relationships Act (NT) directs the Court to make an order adjusting the interests of the partners in the property.  This is reflected in the adjustment orders made by the Master.

[85]     After dealing with the different approaches taken in other jurisdictions, the Full Court in King v Kemp concluded Her Honour did not err by failing to add the husband’s current superannuation entitlements to the current value of tangible assets of the parties in order to calculate the mother’s just and equitable entitlement by taking a percentage of that increased figure.[70]  The Court said that it would have been open to Her Honour to approach her exercise of discretion in that way but she was not obliged to do so.  Significantly, the Court went on to say:

The important thing was for her to have regard to the father’s superannuation entitlements as a valuable financial resource and to ensure that her orders adequately reflected whatever contribution she considered the mother had made to the acquisition, conservation or improvement of that resource.  We believe that her judgement demonstrates quite clearly that she did that and her approach in this respect is accordingly unassailable.[71]

[86]     It was pointed out during argument in this Court that Green v Robinson although closely examined in Chanter v Catts was not followed.  That is undoubtedly the case, however my reading indicates it was the more restrictive approach to superannuation in Green v Robinson that was not followed.  Hogdson JA states that if the judgements of Powell JA and Cole JA in Green v Robinson are interpreted as deciding either that a party’s superannuation entitlements are not property that can be directly affected by an adjustment order or can only be taken into account to the extent of the other party’s contribution to the entitlement, then those judgements are wrong and should not be followed.[72]  Hodgson JA agreed with the analysis of Bryson JA who came to the same conclusion preferring to follow Kirby P in Green v Robinson who was in dissent.  Part of what Bryson JA relied on from Kirby P’s judgment in determining that superannuation was to be considered in the adjustment order was the following:[73]

By s 3(1), the Act requires, in relation to “de facto partners or either of them”, that the financial resources, which must be taken into account under s 20(1) of the Act, are to include entitlements under a superannuation scheme.  This is therefore something which, in the exercise of the s 20(1) discretion, the Court must view as belonging not to Mr Robinson separately however he actually banks or notionally receives the contingent benefit, but to the financial resources of the parties which need to be adjusted, having regard to the contributions “made directly or indirectly” by them.

[87]     By preferring this approach, the decision in Chanter v Catts confirmed that a global view should be taken of contributions rather than specifically the contributions identified with superannuation of either party.  Further it is clear the burden of an adjustment order does not fall only on property or a resource to which a contribution was made.

[88]     The decision in Chanter v Catts drew heavily on the majority in Evans v Marmont,[74] where the Full Court (NSW) convened to clarify the approach to s 20 Property Relationships Act (NSW).  Relevantly Bryson JA considered the majority established a number of principles bearing on the question of contributions including that it is unrealistic to evaluate contributions for the purpose of determining what is just and equitable in isolation from the nature and incidents of the relationship as a whole.[75]  This principle and other factors isolated in his judgement appear to support the view that contributions are to be considered globally and not specific to specific property.  Hence, there is strong support to include the whole of the superannuation interest in the pool and adjust accordingly with reference to the nature and incidents of the relationship.

[89]     Previously, superannuation was not regarded as “property” within the meaning of the Family Law Act (CW): Crapp and Crapp;[76] however taking superannuation into account was an approach frequently used by the Family Court.  The superannuation interest is taken into account in determining what order the court ought to make in altering the interests in the properties of the parties.  For example, in Crapp v Crapp the Court ordered the wife receive an additional sum out of the husband’s half share of the home to adjust for the fact the husband kept valuable superannuation, which on the facts did not vest for a further nine years.

[90]     In my view, taking superannuation into account, at least as a financial resource, when making an adjustment order to achieve a just and equitable distribution is part of the process envisaged under s 18 De Facto Relationships Act (NT).  It is not an unusual process in other legislative settings.  It is in my view required to be taken into account when an adjustment order is made.

[91]     That does not mean that all superannuation benefits should be pooled and not assessed in terms of all the other relevant factors that bear on the adjustment order.  They must be taken account of in the context of the global contributions and the whole of the property and financial resources of the relationship.

[92]     Clearly, as outlined in Chanter v Chatts, the process of taking into account superannuation for the purpose of an adjustment order requires analysis of the type of entitlement itself; a self managed or contributory scheme may differ significantly from an employer only statutory contribution scheme; as noted, some schemes may be more akin to a personal investment and more readily realised; others may not be realised until retirement or other future date.  The point is, the bare superannuation accounts without appropriate engagement with all other relevant factors are insufficient to inform the question of what is just and equitable in terms of an adjustment order.  That is why, on my reading, the Court of Appeal (NSW) in Tyms v Williamson[77] said, “In the light of what was said in Chanter v Catts about superannuation, it does not seem to me to be appropriate simply to add the value of the Appellant’s superannuation to obtain a total of the asset pool for division”.[78]

[93]     In Tyms v Williamson the relationship lasted only seven years.  The Appellant had been employed full time for some years prior to and throughout the relationship.  His earnings were $48,000/year at the start of the relationship.  Aside other assets,[79] he had a superannuation account of $135,191 consisting of two policies.  The primary account had been accrued over a 21 year period from 1978.  At the end of the relationship, all of the Appellant’s assets had increased in value and the whole of the superannuation to the value of $165,191.  During the course of the relationship the Respondent contributed primarily as a home maker working in the house and garden.  The Respondent received child support for her son totalling $58,500 over the period of the relationship.  The Appellant paid certain expenses including school fees for the Respondent’s son.  The trial Judge assessed the Appellant’s assets as worth $550,000; and on the basis of a 80:20 adjustment, awarded the Respondent $110,000.

[94]     In these circumstances, with such a result, it is perhaps not surprising the Court commented that although superannuation is to be taken into account when making an adjustment order;[80] regard was not had by the trial judge for what was said in Chanter v Catts where a distinction should be made between types of superannuation entitlements, contrasting the different qualities and legal consequences.  It was noted the Judge at first instance had simply included amounts standing to the credit of the Appellant’s superannuation as though they were assets under his control and available to him.  In Tyms v Williamson, in re-adjusting the entitlement of the Respondent in that case from $110,000 to $91,000 based on the Respondent being credited with half of the increase of the superannuation during the period of the relationship, the Court of Appeal still relied on the amounts credited to the Appellant in that case in making that re-determination.  The Court of Appeal took into account the short duration of the relationship (compared to the length of time the Appellant contributed), the fact the Appellant would not have access to the assets for some time (he was then aged 51), and the non-financial contributions of the Respondent to the relationship.

[95]     I do not read Tyms v Williamson as against the approach of the Master in this case.  It is emphasising that different considerations may apply to superannuation.  The trial Judge in Tyms v Williamson had not considered the relevant factors.  Superannuation must be seen in terms of the nature and incidents of the relationship.  That is why on my reading the Court of Appeal made an adjustment (albeit only of $19,000) still relying on the superannuation account credited to the Appellant.

The Evidence and Findings on Superannuation

[96]     The way the learned Master dealt with superannuation must be relevantly contextualised with other factors.  The relationship here was relatively long, approximately 20 years.[81]  Both parties were in fulltime employment throughout the relationship, apart from periods of 14 and 28 months respectively when the respondent was not working following the birth of children of the relationship. 

[97]     Both parties took advantage of their entitlement to salary sacrifice into superannuation, more so in the case of the appellant.  The Master notes the respondent would on the face of it be correct therefore in asserting that greater reliance was placed on her income as a result of the utilisation by the appellant of greater salary sacrifice.  The Master notes the appellant did not agree with this and in any event asserted resulting tax savings from the salary sacrifice.[82]

[98]     This is one of a number of examples indicative of the appropriately nuanced approach that the Master in my view has taken.  These are the types of factors to have regard to in the final exercise of a broad discretion conferred by s 18 De Facto Relationships Act as well as, in my view a nuanced approach to the nature and incidents of the relationship.  That approach led the Master to the conclusion of equality of non-financial contributions. 

[99]     In terms of the value of the respective superannuation accounts the learned Master did not consider actuarial evidence as it was not before him.[83]   The Master made his decision on the basis of the material before him, received largely by consent. 

[100]   Although the Master does use the word “separation” when writing of the values throughout his reasons, he has in fact utilised allocated exit values, between separation and the date of trial.  Further, in relation to the Commonwealth Superannuation Scheme (CSS) the Master had before him the breakdown of the surcharge debt; the restricted non preserved benefit; the tax free component and the taxable component.[84] 

[101]   The appellant’s affidavit before the Master also refers to the CSS.[85]  He states the main value of the Scheme is the CPI indexed pension, based on years of service and final salary, paid on retirement or resignation if the age of attainment has been reached; if that age has not been reached the benefit is deferred.  The appellant points out that as the respondent was born in 1962 the relevant age for her is 57 years whereas for himself born in 1951 the relevant age is 55 years.  He points out that he has a surcharge debt of $22,958 that will be deducted at the activation of the pension and that the respondent does not have a surcharge debt as her salary did not at any stage reach the deemed threshold for a surcharge debt.  The appellant pointed out he has reached the age where he is eligible for the benefit.  In contrast, the respondent at that time had nine years of additional service before becoming eligible.  If she chose to continue employment the Appellant stated she will be in an enhanced position in terms of her pension at retirement. 

[102]   Before the Master were statements also from the CSS indicating the appellant’s membership commenced on 26 November 1984.  As at the date of the statement, (being for the financial year 1 July 2009 to 30 June 2010), his period of contributory membership was 25 years 217 days.  The expected allocation, (if exit from the Scheme was on 1 July 2009) is stated as $153,066.24.  The expected allocation if exit on 30 June 2010 is stated as $172,597.76.  The Master has used a later figure rounding out at $138,385, which appears to be an adjustment based on contributions after separation and taking account of the surcharge debt as set out in the Appellant’s affidavit.[86]  Although a date at trial was not utilized for the value, adjustments were made to accommodate the matters raised by the Appellant.

[103]   The Master valued the Appellant’s AGEST account as at March 2010 at $251,159 as appears in his affidavit.[87]  The NTSS account value of $61,147.35 is also sourced in the Appellant’s affidavit[88] and appears to be from advice sought in February 2010. 

[104]   Before the Master on behalf of the respondent was the CSS statement which notes the date she commenced in the scheme as 14 February 1985.  It also notes her period of contributory membership was 22 years 350 days.  This may well be explained by the fact there was around three years when the Respondent was not earning a wage[89] and likely therefore no contribution paid during that period, otherwise the period of contributory membership in 2010 would have been closer to 25 years.  The entitlement is given in two time frames.  The first expected allocation was the equity in the scheme if exit was 1 July 2009 ($187,231.69).  The second was the expected allocation if exit from the scheme was on 30 June 2010 ($212,544.76).  In dealing with the CSS account, the Master utilised the sum of $187,254 being the sum relevant on the evidence before him if exit was on 30 June 2009.[90]  The value for the AGEST fund of $28,828.96 was stated at 6 May 2010.[91]  The dates for the values on the Respondent’s superannuation were not at separation.  They were closer to trial although the CSS value was taken 18 months prior to trial.

[105]   In terms of making an adjustment because the respondent at the time of trial had a longer working future before becoming eligible for the pension and therefore will be vested with a higher value pension, the Master was constrained by the evidence before him.  This is acknowledged at para 23 of the reasons where in the reference to the Appellant’s submission on this, the Master says:[92]

“He argues that that needs to be taken into account and I agree.  However no evidence has been produced to enable me to do so.  The Defendant asserts that if regard is had to the value of the pension then the respective values of the funds are approximately $804,000.00 in the case of the Plaintiff and approximately $722,000.00 in the case f the Defendant.  Although the Defendant may be correct in principle, his assertion of value is inadmissible.  I can only assess values based on the available, and admissible, evidence.  In this context I only have admissible evidence of the balance of the various accounts.  There is no evidence from which even an estimated assessment of the pension component of the CSS superannuation could be made.  That would require actuarial evidence.  Without that the only practical approach is to determine the value of that superannuation at separation based on the capital balance of each account.”

[106]   The learned Master was similarly constrained in relation to losses the appellant asserted had been incurred since separation as well as draws affected by him to minimise tax during transition to retirement.  Once again the Master clearly felt constrained on the lack of evidence to properly assess and establish the facts the appellant was then asserting.  In the Master’s reasons he states:[93]

“Irrespective of whether or not the Defendant is correct in principle, there is no evidence which enables the value of the accounts to be assessed with regard to those factors.  Expert evidence would be required to establish that.  The Plaintiff’s approach appears to me to be the best approach based on the available evidence and I adopt it.”

[107]   Ultimately the Master was constrained by the evidence before him and acknowledged the imperfection of the circumstances, but in my view the method of attributing the near to current value of the accounts held by the parties was reasonable and the best available to the Master at trial.  The appellant has not on appeal pointed to any admissible evidence the Master should have taken into account in ascribing a value other than that found by him.

[108]   The Master accepted the CSS pension is a defined benefit scheme and the main benefit is the indexed pension.  The superannuation benefits were primarily government employer schemes and were not in the nature of a private investment that could be accessed in the near future by either party, save that the Appellant apparently will have access to the funds much sooner given the age difference between the parties.  Although the basis of the superannuation benefits are derived from employer contributions, it is clear that both parties took advantage of salary sacrifice, the Master found the Appellant, “more so”.  In 2005 the Appellant sold shares for $163,069.  The proceeds were expended on various items and after other costs deducted, $57,000 was paid into the AGEST account.  The NTSS fund of the Appellant’s was accepted as a non-contributory fund, given to the Appellant in lieu of other benefits.  The value at February 2010 was found to be approximately $61,000.[94]

[109]   In my view in these circumstances it was appropriate, indeed the learned Master was required to treat the superannuation at least as a financial resource accumulated and maintained during the course of the relationship.  Given the further significant contributions by the Appellant, in my view the learned Master made the appropriate adjustments including in the final determination the adjustment of the interests in property of the parties. 

[110]   The learned Master had regard to the appropriate factors as set out in the cases.  This is not a situation such as in Tyms v Williamson where it would be obviously unjust in the circumstances to consider the whole of the superannuation assets of one party to be property of the relationship.  Here, given the adjustment the Master made to the overall property interests, I do not find error of a type justifying intervention.  I would dismiss those grounds of appeal relevant to superannuation. 

Ground 5(a) and (b) – The value of the guarantee; the rental value of the Parap property.

[111]   Although it is somewhat confusing as to precisely how this arose, the Respondent purchased a house in Moil after separation.  It  may be the Respondent received some consequential advantages from initiating the original purchase given she was able to live in and later sell the Moil property to purchase properties in Victoria.  The loan for the mortgage for the house in Moil was in part facilitated by the Appellant being a personal guarantor.  It is clear the Master made an adjustment of $2,000 in favour of the Appellant for this.[95]  He also noted it may have been different if the guarantee had still been in existence at the time the Moil property was sold.  That was not the case.[96]

[112]   The Master made an adjustment in favour of the Respondent by virtue of the Appellant occupying the Parap property for approximately three years.  The Appellant submitted he was entitled to occupy a property of which he was joint owner.  The home was unencumbered.  Post separation  the Respondent needed to find alternative accommodation for herself, her daughter, (and for a short time), her son.  The Master treated this as a post separation indirect contribution by the Respondent.[97]  In my view it was open to the Master to approach this issue by allowing $30,000, calculated by reference to rental value.

Ground 5(c) – Error in making adjustments on account of shares purchased from pre-relationship assets and error in the value of the shares; Ground 7 – Failing to properly take account of the Appellant’s contribution in respect of the proceeds of sale of the shares.

[113]   The Appellant had acquired approximately 120,000 shares in a mining company prior to the commencement of the relationship.  Through dividend reinvestment the number of shares increased to 129,727.  A further 17,142 shares were purchased from joint assets bringing the total shareholding to 146,869.  The share holding was sold in 2005 for $165,069.  Other shares were purchased plus $57,000 was placed in the Appellant’s AGEST account.  The value the Master placed on the shares was sourced in the Respondent’s affidavit,[98] relied on publicly listed share prices, and was not challenged.  The increase in the value of those shares was amended in the affidavit to $100,422 to reflect the then current value.  The Master accepted that valuation,[99] considered the percentage of the total shareholding represented in those shares and adjusted the calculation accordingly. 

[114]   The Appellant asserted his capital gain liability in the tax year 2005-6 in relation to the sales of the mining share portfolio was $101,323.[100]  His affidavit states he was able to “call up” share losses from the 1987 stock market crash as a reduction on his CGT liability.  In cross-examination the Appellant’s tax assessment 05/06 was put before him.  He agreed the sum of $101,323, allowing for the 50% discount was $50,661.  He agreed his principal deduction in his tax returns against capital gains was slightly more than $1,000.[101]  The Master rejected his evidence on this point expressly, referring to the cross-examination.[102]  The Master made an assessment, by necessity an estimate concerning CGT, however he had evidence well capable of inferring it was paid from joint resources, and would need to be calculated with reference to a sum of 50% of $100,000 paid at the Appellant’s marginal tax rate.  The Appellant did not offer any acceptable alternative.  The Master concluded consideration of this matter by assigning $89,000 as the net value for adjusting order purposes.  The most urrent values available were used.  This approach was reasonably open to the Master.

Ground 5(d) – Alleged error valuing the Respondent’s inheritance.

[115]   The Master accepted the Respondent’s calculation that the value of her inheritance from her mother’s estate facilitating the purchase of the Surry Hills property was $79,000.  Although the inheritance of $40,000 in 1990 was relatively early in the relationship, the Master considered it a significant asset of great benefit to the parties.  Of the $40,000, $7,000 was used to retire mortgage debt; $33,000 was used to purchase one third of the share in the Surry Hills house.  Initially the other shares were owned by siblings but their shares were sold to the Appellant and Respondent jointly. 

[116]   The purchase price of the Surry Hills property was $225,000 and the parties spent a further $65,000 adding a deck.  The total expended may be regarded as $290,000.  In December 2007 the property sold for $915,000, realising a net figure of $784,072, that was divided equally between the parties.[103]  The Master accepted the ratio of the initial contribution to purchase proceeds as 11.3%. Allowing a proportional calculation of CGT of $87,000 paid in respect of the Surry Hills property, the Master accepted the value of $79,000, subject to an adjustment in the Appellant’s favour of $10,000 for the Appellant’s contribution of $89,000 for the Appellant’s pre-relationship shareholding.  In my view this was a reasonable approach in the context of this case and I would not allow this ground of appeal.

Ground 5(e) – Alleged Error with Respect to Off-Setting the value of assets.

[117]   The Master attempted a global view of contributions, however in addition to contributions tending to lead towards a conclusion of equality, there were specific items the parties asserted were to be traced and valued.  Where appropriate, the Master dealt with the enumerated assets by taking them into account as against each other in assessing the overall contributions.  It was open and convenient for him to deal with these specific items in this manner.

Ground 6 – The Master erred in law in failing property to take into account the late contribution by the Appellant of an inheritance of approximately $219,000 from his mother’s estate.

[118]   Three years before separation the Appellant inherited approximately $219,000 from his mother’s estate.  The funds were used to buy more shares and repay mortgage debts, $91,000 off of the Parap home and $50,000 off of the Surry Hills property loan.  Twenty six thousand dollars ($26,000) was re-drawn from the mortgage and used to purchase wood lots which by the time of trial were of no value.  Through various other asset transactions, the Master appears to have accepted the value of the inheritance at time of trial was $212,000.  The Master rejected the Respondent’s submission at trial the value should be fixed at 8% of the pool[104] of assets.  In rejecting that percentage the Master determined it should be set at 8.2% having regard to the significance of mortgage retirement and debt reduction to the family finances as a whole.  Counsel for the Appellant was critical of reasons referring to dilution of the contribution.  In the context of this case in my view the learned Master was referring to a submission that as this particular contribution came towards the end of the relationship it was not of the same value as if it had been contributed much earlier in the relationship where the value of debt reduction and savings on interest would be more significant.  It was a relevant factor the Master needed to consider.  In my view it was dealt with in a reasonable manner.

The Remaining Grounds

[119]   Ground 8 alleges the Master erred in failing to give proper weight to the Appellant’s “significantly greater financial contribution to the assets of the parties”.  Ground 9 asserts the adjustment order to divide assets 53.75% to the Appellant and 46.25% to the Respondent was outside of the reasonable exercise of discretion.

[120]   As noted above, I do not agree the Master made particular errors as asserted.  The Master set out the three main steps acknowledged in the accepted authorities: Kardos v Sarbutt[105] and Chanter v Catts.[106]  He identified and valued the property and financial resources of the parties; he evaluated and balanced the respective contributions of the parties – a significant part of the proceedings before the Master and his reasons were spent dealing with the particular issues of items of value contributed by the Appellant.  Finally, the Master determined the orders required to recognise and compensate the contributions, in this instance, the more significant financial contributions of the Appellant.  The Master’s reasons properly explain the considerations given to weighing the adjustment in the percentages he finally settled on.

Notice of Contention

[121]   The Respondent has filed a Notice of Contention asserting the Master erred in law in refusing to make an adjustment to balance the financial and non-financial contributions of the parties.  In the circumstances of this case, given the findings on roughly equal contributions, I find no error.


[122]   I am not persuaded the Master was in error for any of the grounds contended.  I would dismiss the appeal.


[1]     Kardos v Sarbutt (2006) 34 FamLR 550; Evans v Marmont (1997) 42 NSWLR 70.

[2]     (1998) 145 FLR 456.

[3]     (1996) 127 FLR 279.

[4]     (1996) 127 FLR 279 at 297.

[5]     (1996) 127 FLR 279.

[6]     (2005) 64 NSWLR 360.

[7]     (2005) 64 NSWLR 360 at 366-367 [25].

[8]     (2005) 64 NSWLR 360 at 366 [24].

[9]     (2005) 64 NSWLR 360 at 383 [90].

[10]    (2005) 64 NSWLR 360 at 366 [21]; at 383 [89]-[90]; at 340 [120].

[11]    [2010] NSWCA 138.

[12]    [2010] NSWCA 138 at [50]-[52].

[13]    [2010] NSWCA 138 at [66].

[14]    (1997) 42 NSWLR 70 at 84-85.

[15]    (1991) 104 FLR 458 at 469.

[16]    (1989) 96 FLR 368 at 372.

[17]    (2005) 66 NSWLR 360 at 383 [90].

[18]    (2005) 66 NSWLR 360 at 383 [90].

[19]             (1996) 127 FLR 279 at 295.

[20]    (2005) 64 NSWLR 360 at 383-384 [91].

[21]    (1996) 127 FLR 279 at 295.

[22]    AB 29-30.

[23]    AB 500; AB 227.

[24]    AB 34.

[25]    (2005) 64 NSWLR 360 at 379; 381; [74]; [80].

[26]    See also Gould v Gould [2010] FamCA FC 197 at [80] where the Full Court of the Family Court considered that post separation use of assets could be taken into account as a contribution by the other party.

[27]    (2006) 34 FamLR 550 at [59]-[61] per Brereton J, with whom Basten JA and Hunt AJA agreed.

[28]    See AB 328, AB 17-18.

[29]    The actual figures are set out in Mr Young’s submissions before the Master in paragraph 32.

[30]    AB 328.

[31]    See also paragraph 12 of the Defendant’s defence.  Neither party could account for the difference between $216,484 and $219,000 inherited.

[32]    See finding of the Master at para [42].

[33]    See finding of the Master at para [44].

[34]    Because windfall gains, such as an inheritance, do not form part of the property of the relationship unless the property has been disbursed for joint purposes: see Ottley v Chester (2010) 247 FLR 271 at 288 [79].

[35]    AB 217-218.

[36]    (1997) 42 NSWLR 70 at 84-85.

[37]    Reasons of Master at para [5].

[38]    Reasons of Master at para [4].

[39]    (2006) 34 FamLR 550 at [36] per Brereton J, Basten JA and Hunt AJA concurring.

[40]    This figure does not include superannuation.

[41]    Reasons, paras [57]-[59]. The learned Master calculated if the Parap home sold for $875,000, the Respondent should receive $533,435 represented by her share of the pool being 46.25% of $2,576,400 ($1,191,585), less value of assets already received, ($658,150).  The Appellant had received $1,043,250 less CGT, leaving a net sum of $1,043,250.

[42]    Reasons, paras [57] – [59], AB 563,564; Authenticated Orders, AB 567 – 569.

[43]    Reasons, para [3], AB 541.

[44]    Reasons para [4].

[45]    Reasons AB 542, para [7].

[46]    Reasons AB 563, para [57].

[47]    Annexure A, Affidavit of Respondent, AB 329. Reasons 561. Para [52].

[48]    Reasons paras [19],[20]; AB 547.  At para [20] the Master explained “the amounts in this and the preceding paragraph are sufficiently close in value, after allowance for the differing time periods, to set off against each other when taking a broad approach to the determination of contributions”.

[49]    Reasons paras [54], [55]; AB 562.

[50]    Reasons para [46]; AB 559.

[51]    Reasons para [53]; AB 561-562.

[52]    Reasons para [28]; AB 550, para [48], AB 559-560, para [56]; AB 562-3.

[53]    Abbreviated forms of the grounds are used here.

[54]    Section 3 De Facto Relationships Act (NT).

[55]    Section 3 De Facto Relationships Act (NT).

[56]    Family Law Legislation Amendment (Superannuation) Act 2001.

[57]    Family Law (Superannuation) Regulations 2001.

[58]    Superannuation Industry (Supervision) Amendment Regulations 2001 (No 3); Family Law (Superannuation) (Consequential Amendments) Act 2001. For example, regulations now provide for a roll-over or transfer of benefit and payment of a lump sum in specified circumstances even if not initially contemplated by the particular fund

[59]    Which also ensures other legal consequences such as taxation obligations do not erode what is contemplated in any order or agreement splitting superannuation.

[60]    Here the Court has been referred to cases dealt with under the Property (Relationships) Act NSW; cf De Facto Relationships Act SA, s 3, “property” definition include prospective superannuation benefits.

[61]    For parties who have separated after 1 March 2009 by referral through the De Facto Relationships (NT Request) Act (NT), property matters may now be dealt with under Family Law Amendment (De Facto Financial Matters and Other Measures) Act (Cth).

[62]    (1995) 36 NSWLR 96, dealing with the previous De Facto Relationships Act (NSW), however in terms as the later Property (Relationships) Act 1984.

[63]    Kirby P at 98; Powell JA 108-109; Coles JA 114.

[64]    Green v Robinson at 109.  His Honour also added the option of adjournment until the entitlement vests.  This was not a relevant consideration in the determination of this Appeal.

[65]    Green v Robinson at 113.

[66]    [2005] NSW CA 411.

[67]    Step one: identification and valuation of property, step 2: identification of respective contribution of the parties; step 3: determination of what is just and equitable.

[68]    (1996) 127 FLR 279.

[69]    King v Kemp at 297.

[70]    King v Kemp at 297.

[71]    King v Kemp at 297.

[72]    Chanter v Catts at 366.  Hunt A-JA expressly agreed Hodgson JA on this point.

[73]    Chanter v Catts at 381.

[74]    (1997) 42 NSWLR 70.

[75]    Chanter v Catts at 377, para [66(g)].

[76]    (1979) FLC 90-615.

[77]    [2010] NSW CA 138.

[78]    Tyms v Williamson para [66].

[79]    Unencumbered real property, ($160,000); Savings Account ($28,948); 1991 Nissan Pulsar; 1997 Harley Davidson Motorcycle; Furniture and Personal Effects.

[80]    Tyms v Williamson, Para [50].

[81]    Reasons, para [3].

[82]    Reasons, para [5], AB 542.

[83]    This was particularly relevant in relation to the Commonwealth Super Funds and the Master acknowledged the only satisfactory method of valuing that component would have been by actuarial evidence.  Neither party called that evidence.

[84]    AB 400.

[85]    AB 424.

[86]    AB 448, 445, 449, 454.

[87]    Sworn 1 October 2010, AB 442.

[88]    AB [438].

[89]    Noted above after the birth of children.

[90]    AB 338.

[91]    AB 340.

[92]    AB 548, paras [22], [23}.

[93]    AB 549, at para [26].

[94]    Reasons at para [27] AB 549-550.

[95]    Decision AB 562 – 563 para [56].

[96]    Reasons, para [32].

[97]    DR v CAT (2005) Fam CA 213 at [52]. 

[98]    AB 319, Respondent’s affidavit, para [15].

[99]    Reasons at [52].

[100] AB 417.

[101] AB 307-308.

[102] AB 552, para [33].

[103] AB 532.

[104] Reasons, para [54].

[105] (2006) 34 Fam LR 550.

[106] (2005) 64 NSWLR 360.