By Ryan Attard, Law Clerk

Court’s failure to assess contributions and considerations relating to superannuation

Mr Scriven (“the husband”) appealed orders made by a judge of the Federal Circuit Court of Australia effecting a property settlement between him and Ms Scriven (“the wife”), whereby:

  • His superannuation (in the payment phase and unable to be converted to a lump sum) was to be split, with the wife to receive 25%; and
  • The wife was to receive 70% of the proceeds from the sale of the former family home and he was to receive 30%.

The parties began living together in 1998/99. They married in 2001 and separated in 2017. The wife had a child from a previous relationship and the parties had two children together – one of whom was an adult at the time of the trial and the other turning 18 by the time of the appeal. The husband worked in the Defence Force until being medically discharged in 2014 due to ill health, including severe PTSD and alcoholism. The wife had been employed as a public servant but had been unable to work since 2018 due to injuries sustained in a car accident after separation, including severe psychological injuries. It was unknown at the time of trial if she would be able to return to work. The wife had been primarily responsible for homemaker and parenting responsibilities during the marriage, including during periods the husband was deployed overseas, and caring for him during his subsequent health difficulties.

The husband’s appeal succeeded on a number of grounds, including as follows:

  • The trial judge did not determine the value of the husband’s superannuation interest before making a superannuation splitting order as required by section 90XT(2) of the Family Law Act (“the Act”). This sub-section is in mandatory terms and requires a finding by the trial judge before a splitting order can be made.
  • Whilst it was open to the trial judge to determine to adopt an asset by asset approach, this required a consideration of the parties’ respective contributions to each separate asset, including in particular the husband’s superannuation interest.
  • It was not apparent from the trial judge’s reasons that she had taken into account the direct financial contribution made by the husband to his superannuation interest and, in particular, there was not express weighing of that contribution with all of the other contributions to and in respect of his superannuation.
  • The trial judge was found to have provided inadequate reasons in support of her decision which meant it was not possible to identify the contribution-based assessment in relation to the husband’s superannuation entitlement. (Her Honour had not attributed particular percentages or dollar amounts to the assessment of contributions.)
  • It was also not apparent from the judge’s reasons that she had taken into account the husband’s state of health and income earning capacity – it being his case that he was incapable of obtaining employment due to his health condition. The trial judge had looked at the superannuation entitlements of both parties (including of the wife to receive a capital payment when she reached retirement age) but did not address in her reasons the husband’s health and inability to work.

The husband also contended on appeal the trial judge made an error by not considering the factors relevant pursuant to section 75(2) of the Act (being considerations relating to the parties’ means and future needs) in relation to each asset. The appeal judge found this was not required in all cases and that some cases lend themselves to an overall or global approach to those considerations, even if taking an asset by asset approach to the matter, as the trial judge had done taken in this case.

The appeal judge, Justice Strickland, set aside four paragraphs of the orders made by the trial judge, remitting only the issue of the husband’s superannuation interest for rehearing by another judge of the Federal Circuit Court.

Scriven & Scriven [2020] FamCAFC 236