Cherokee & Cherokee [2025] FedCFamC1A 191 (24 October 2025)

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cherokee & Cherokee has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is an appeal against final property orders made by a Judge of the Federal Circuit and Family Court of Australia (Division 2) filed on behalf of the appellant (wife). For the reasons which follow, the appeal will be allowed.
2. Both parties sought that if the appeal were permitted I re-exercise the discretion and make property adjustment orders. I propose to do so. The parties have had the opportunity to file written submissions which engage with amendments to the Family law Act 1975 (Cth) ("the Act") in the period between trial and appeal. Neither party sought to file further evidence or challenge the factual findings of the primary judge which I will adopt.

1. The parties sought an adjustment of their interests in property at the conclusion of a relationship which the primary judge found was 6 years 3 months in length.
2. Relevantly, the parties, in addition to real and personal property, had the following superannuation entitlements:

(a) Husband's interest in the Super Fund 1 fund, an accumulation fund in the growth phase;

(b) Husband's interest in Defence Force Retirement Benefit pension in the payment phase ("DFRDB pension");

(c) Wife's interest in Super Fund 2 defined benefit fund in the growth phase ("Super Fund 2 defined benefit fund");

(d) Wife's interest in the Super Fund 1 fund, an accumulation fund in the growth phase.

1. The wife sought the following order from the primary judge:
   1. That, in accordance with section 90XT(1)(a) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90XE of the Act becomes a payable to, or on behalf of the Husband from his interest in the Defence Force Retirement and Death Benefits Scheme (DFRDB), the Wife is entitled to be paid (by the Trustee of DFRDB) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $720,000 and there is a corresponding reduction in the entitlement the Husband would have had but for these Orders.
2. The husband resisted the making of an order which split his DFRDB pension.
3. The primary judge declined to make a superannuation splitting order in respect of the husband's DFRB pension.
4. The primary judge identified as an issue to be determined whether "the Husband's defined benefit superannuation interest in the DFRDB should be treated as property or a financial resource?"
5. The wife's expert, Mr C, gave a capital valuation of the husband's interest in the DFRDB pension at $2,873,570.60 in accordance with the Family Law (Superannuation) Regulations 2001 (Cth) ("the Regulations").
6. The primary judge understood the wife sought a splitting order when she said at [52]:

The Wife seeks a superannuation splitting order from the Husband's interest in the DFRDB. It is important to note that the Husband's pension cannot be commuted into lump sum form however, Part VIA of the Defence Force Retirement and Death Benefits Act 1973 (Cth) together with the Defence Force Retirement and Death Benefits (Family Law Superannuation) Orders 2004 (Cth) permits a splitting order to be made. If a splitting order is made, an associate pension would be created for the Wife pursuant to s 49B of the Defence Force Retirement and Death Benefits Act 1973 (Cth).

1. After setting out the wife's contention that the DFRDB interest should be treated as a superannuation asset with a capitalised value and the husband's contention that it should be treated as a financial resource, the primary judge undertook an analysis of the law and then expressed a conclusion under the heading 'Conclusion as to whether the DFRDB is property or a financial resource'.
2. The reasoning by which the primary judge concluded that "the Husband's DFRDB pension is a financial resource and is not an asset" is set out in paragraphs [74] - [80] of the reasons for judgment.
3. The wife did not argue that the primary judge was obliged to adopt the capitalised value for the purpose of determining the asset pool but rather, by reference to the capital values of the parties' respective defined benefit funds, and the financial decisions which had been made by them during the relationship, she submitted justice and equity required the making of a splitting order from the DFRDB pension which could be split.
4. The primary judge proceeded to treat the husband's DFRDB pension as a financial resource but included the wife's defined benefit in the growth phase as an asset with a capitalised value.

1. Section 90XC(1) of the Act says that a superannuation interest is to be treated as property for the purpose of paragraph (ca) of the definition of "matrimonial cause" in s 4.
2. This enlivens the jurisdiction of the Court to make a splitting order as superannuation is to be treated as "property of the parties of the marriage or either of them".
3. The expression "is to be treated as property" does not mandate the result. It does not oblige a judicial officer to make a splitting order. It does not ignore the nature and characteristics of the property, but it unequivocally states that it is to be treated as property.
4. Section 90XS says that in proceedings under ss 79 or 90SM with respect to the property of spouses, the court may, in accordance with this Division, also make orders in relation to superannuation interests of the spouses.
5. The guidance on whether and, if so, how to make a superannuation splitting order comes from s 79 of the Act.
6. Section 79(4) required the Court to take into account financial and non-financial contributions of the parties to the property of the parties or either of them. It did not mention financial resources. Section 75(2)(b) (as it was at the time of trial) required the Court to consider each party's financial resources and consider the extent to which a party had contributed to the income, earning capacity, property and financial resources of the other party: s 75(2)(j). They are distinct considerations.
7. Property is amenable to an order for adjustment, financial resources are not.
8. By various grounds, discussed below, the wife submits the primary judge failed to follow principles established by the case law which pertain to defined benefit pension funds in the payment phase. The difficulty with submitting that a primary judge has acted in keeping with or in contradiction to principle drawn from case law is in ensuring that the decisions which are cited as authoritative have sufficient factual similarity to make the application of principle mandatory and derogation from same legal error.

1. In circumstances where the wife sought a splitting order with respect to the husband's Defence Force Retirement and Death Benefits Scheme defined benefit entitlement ('the Husband's DBE'), the learned primary judge:

**_1.1. Erroneously applied Semperton & Semperton [2012] FamCAFC 132; (2012) 47 Fam LR 626 and its related authorities to reach the conclusion that the Husband's DBE ought be omitted from the list of existing interests in property to be considered for division;

1.2. Erroneously concluded that the considerations in s 79(4) could not or should not be applied to the Husband's DBE;

1.3. Failed to consider whether it was just and equitable that there be a splitting order directed towards the Husband's DBE._**

1. Given that the wife was seeking a splitting order, it was incumbent on the primary judge to consider that application and, in refusing it, give reasons. The Reasons for Judgment record at [256]:

The Wife has sought a superannuation splitting order from the Husband's DFRDB however, as I have determined that this is a financial resource and not an asset, the only superannuation interest that would be amenable to a superannuation splitting order is the Husband's Super Fund 1.

1. The primary judge was led astray when the husband submitted "...there should be one pool but that it should not, and as a matter of law cannot, include as an asset the Husband's DFRDB in payment phase" (emphasis added). At trial, the respondent relied on the decision in Preston & Preston [2022] FedCFamC1A 157; (2022) FLC 94-108 ("Preston") in support of the proposition that the husband's DFRDB pension in the payment phase should be regarded as a financial resource (or as income and not an asset) without highlighting that the case was different in three material respects: firstly and most importantly, because no superannuation splitting order was sought in Preston, secondly because the pension which had been valued in that case was a medical pension which had the capacity to cease if the medical issue was deemed resolved and thirdly, because the methodology the primary judge adopted in that case had the effect of counting the pension twice (as property and as income).
2. The primary judge was entitled to decline to make a splitting order but not in reliance upon a conclusion that the husband's interest was a financial resource. It is necessary to say something about language. The Act uses the expressions "property", "income" and "financial resource". They are not defined (except in so far as property is defined as "property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion").
3. As the High Court stated in Hall v Hall [2016] HCA 23; (2016) 257 CLR 490 at [56]:

The reference to "financial resources" in the context of s 75(2)(b) has long been correctly interpreted by the Family Court to refer to "a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency."

(Footnotes omitted)

1. It needs to be observed that a superannuation pension may have the character of property (because the Act says it is to be treated as property), a financial resource because the party in receipt has a reasonable expectation of receipt of a benefit from that source, and an income stream. The difficulty which arose in this case arose because it appears on its face that the primary judge determined the DFRDB pension had only the character of a financial resource and hence was unsplittable. The proper course would have been to determine that in the circumstances of this case it was best characterised as income and, as a consequence, that the primary judge proposed to decline the application for a splitting order, not because same was unavailable, but because same would not be just and equitable.
2. To say that a superannuation pension is more properly considered as an income stream is sound. It is a particular way in which the Court is able to recognise the nature and characteristics of that particular species of property. But the fact that it is more properly considered as an income stream does not make it unsplittable, albeit it may persuade a judicial officer to exercise the discretion in that manner.
3. King's Counsel for the husband argued that "not amenable" in [52] should be read as synonymous with "I ought not" as opposed to "I can't". I am not persuaded that "not amenable" means anything other than "cannot" in this context.
4. The steps which the authorities would suggest were appropriate given the parties' competing contentions were:

(a) Make a determination as to whether it was appropriate to make the splitting order sought by the wife;

(b) If the splitting order was made, have regard to the capitalised value of the particular species of asset;

(c) If the splitting order was made - give reasons for making the splitting order;

(d) If the splitting order was declined - give reasons for declining the splitting order;

(e) If the splitting order was declined - consider what (if any) relevance the capitalised value has in the making of just and equitable orders having regard to the parties' contributions (direct and indirect over whatever period), any special characteristics of the asset - liquidity, terms on which it may cease, age of the recipient, income paid and to be paid to the recipient.

1. Because the primary judge focused on a binary choice between property or financial resource, she did not engage in an analysis of the reasons why she was declining to make the order which the wife sought. It follows that I am persuaded that Ground 1 has merit and the appeal must be allowed.

2. Having concluded that the nature and characteristics of the Husband's DBE were such that it was a financial resource and that it was to be omitted from the list of existing interests in property to be considered for division, the learned primary judge:

**_2.1. Erroneously included the wife's defined benefit entitlement in the Public Service Superannuation Scheme, despite it having the same characteristics and nature as the Husband's DBE; and

1. Grounds 1, 2 and 3 are inter-related. The effect of the primary judge's decision to characterise the DFRDB pension as a "financial resource" was that she did not consider the matters in s 79(4) as they related to the DFRDB pension.
2. In contrast, the primary judge concluded that the wife's Super Fund 2 defined benefit fund should be included in the pool of assets against which she assessed s 79(4) matters.
3. The wife had submitted at trial that a two pool approach was to be preferred, as that would permit an analysis of the parties' respective contributions and also relevant s 75(2) matters in respect of property and accumulation interest superannuation on the one hand and defined benefit fund superannuation entitlements on the other. While it is accurate to note that the husband's pension could not be commuted to a lump sum, while the wife retained the right to elect to take her defined benefit fund interest as a lump sum or a pension, they were otherwise similar in nature in so far as a valuation pursuant to the Regulations produced a capitalised value which may or may not represent the eventual value of the interest to the member. The ground is established.

3. The learned primary judge erred in failing to adopt a two-pool approach with respect to the parties' defined benefit superannuation entitlements and other property interests.

1. The wife had contended for a two pool approach. The primary judge was not obliged to adopt a two pool approach. The error lay in failing to consider that by including the wife's defined benefit superannuation entitlements in the "asset pool" the primary judge did not have regard to its nature and characteristics (including in due course that the wife may have elected a pension) - a matter which was reflected in its present day valuation. The ground is established.

4. In giving 'significant weight' to the husband's initial contribution, the learned primary judge:

**_4.1. Gave no regard to the payment made by the husband to his sister of some $460,000 shortly after the commencement of the relationship such as to reduce the husband's initial contribution by that amount;

4.2. Failed to properly evaluate the wife's non-financial contributions in the context of the marriage; and

1. Both parties ran their cases on the basis that whatever the husband's initial contributions may have been, they were diminished by his gift to his sister of $450,000 shortly after cohabitation. The husband's senior counsel expressly conceded same in closing submissions.
2. Because the Reasons for Judgment do not record the fact of the gift or the concession about its impact on contributions, the Reasons for Judgment do not make plain whether or not the primary judge considered the fact and the concession.
3. Given the primary judge's conclusions about the parties' respective contribution-based entitlements concluded that the husband's initial contributions should be given significant weight, it is unclear to what extent the primary judge considered (if at all) the impact of the husband's significant gift shortly thereafter.
4. The primary judge assessed the contributions of the parties as favouring the husband 70/30. Given the primary judge's conclusion at [210] then, the differential is explained by their initial contributions. Absent any discussion of the manner in which the initial contribution was diminished by the agreed gift, it is not possible to determine whether the primary judge had regard to a relevant material matter and the ground is established.

5. The learned primary judge failed to give consideration to the justice and equity of making orders resulting in the wife receiving a substantial component of her overall entitlement in the form of a defined benefit superannuation entitlement as opposed to presently accessible property, and gave inadequate reasons for so doing.

1. The primary judge's orders provided that the wife receive assets and superannuation with a net value of $1,445,264. The wife was 51 years old at the time of hearing. The property settlement she received was compromised as to 46% of superannuation assets to which she could have no recourse until she met a condition of release. There is no discussion of this in the Reasons for Judgment. I am satisfied that the failure to consider the nature of the assets which the wife was to receive was in error.

1. Neither party sought to place updating evidence before the Court. I was told in submissions that monies in the solicitor's trust account would have been applied to legal fees. I accept that may well be the case (and to that extent the husband has had the benefit of those funds). I am limited by the parties' decision not to remit and file evidence about changes to their financial circumstances.
2. The parties are also at issue about how the court should treat the assets which the wife received after separation (represented by her interest in a property in Suburb B, trading account and car). Again, I do not have either an agreement about approach or agreement about value, so I must do the best I can within the parameters of the curtailed manner in which the parties approached the re-exercise.
3. Having regard to the analysis set out above I find that the assets, liabilities and superannuation interests of the parties are as set out below:

Estimated tax/super liabilities for funds in NAB [Cherokee] Trust account #...71

Estimated tax/super liabilities for [Cherokee] Consulting invoice dated 9/12/24

1. The above superannuation amounts are after implementation of the split ordered by the primary judge. The table of assets and liabilities also reflects the payment of $400,000 by the husband to the wife in compliance with the final orders and the transfer of the vehicle in the wife's name to the husband.
2. The parties also have the following entitlements:

1. The matter was heard and determined by the primary judge before amendments to the Act which took effect on 10 June 2025 and the decision of the appellate Court in Shinohara & Shinohara [2025] FedCFamC1A 126.
2. It is necessary for me to consider the impact of those two changes on the manner in which the primary judge approached the category of "addbacks".
3. The parties had included the following under a heading "addbacks" in the joint balance sheet:

Funds withdrawn from joint account for [Suburb B] property deposit

1. As is plain from the above table, in order to ensure that the resulting orders are just and equitable, I must have regard to the fact that the wife has had the benefit of $376,816 since the parties separated. The husband has also applied $72,571 to payment of his legal fees.
2. I have approached the parties' superannuation on the basis that it is appropriate that I consider the accumulation interests of the parties as property in the first pool.
3. I will separately consider the husband's DFRDB pension. I accept the submission that there are two qualitative differences which warrant its separate consideration. The first is that, according to the valuation evidence, it was valued at $2,873,570.60 at the commencement of the parties' cohabitation. It had this value because of the lengthy service of the husband which predated the parties' relationship. The second is that, as a consequence of the election which was made during the relationship, the pension is not commutable. That is not to say that it does not have significant value to the husband, but it cannot be realised as a lump sum.
4. And finally, I will separately consider the wife's defined benefit scheme entitlement with the Super Fund 2. The wife has no present entitlement to these funds. The wife may elect to commute some or all of the sum when she meets the conditions for payment. However, if she elects to take a pension, then the superannuation will (at that point) assume the same character as the husband's pension.

1. The parties made financial and non-financial contributions in the context of their relationship between early 2016 when they married and began to live together and separation in mid-2022. I accept both also continued to make contributions between the date of separation and the date of hearing.
2. I take into account the parties' initial contributions which I find were as per the primary judge's reasons at [155] - [157]:

155 At the commencement of the parties' marriage, the Wife had the following:

(a) A property at [G] Street, [Suburb H], New South Wales;

(b) A property at [J] Street, [Suburb H], New South Wales;

(c) A property at [K Street], [Suburb H], New South Wales;

(d) A property at [L Street], [Suburb M], Queensland;

(e) A modest motor vehicle and furniture; and

(f) Super Fund 2 defined benefit superannuation entitlements of $310,309.

1. The Wife's evidence was that the combined equity in the four properties she owned was approximately $450,000.

157 At the commencement of the parties' marriage, the Husband had the following:

(a) A property at [N Street], [Suburb O], Australian Capital Territory with equity of $877,000;

(b) Cash at bank of $954,939;

(c) A motor vehicle and furniture;

(d) DFRDB defined benefit superannuation entitlements of $2,258,805.88;

(e) Defence Force (Superannuation) (Productivity Benefit) superannuation entitlements of $140,594.79; and

(f) Commonwealth Super Corporation superannuation entitlements of $187,698.48.

1. I note that the husband's cash was diminished by the $450,000 gift to his sister soon thereafter.
2. The contribution-based entitlements of the parties' arising out of the capital they introduced at the commencement of the relationship (less the gift) overwhelmingly favours the husband.
3. During the relationship the parties each made financial contributions. The financial contributions of the husband were greater than those of the wife, but the non-financial contributions of the wife were greater than those of the husband such that I accept that the contributions each made during the relationship were equivalent.
4. It is necessary for me to consider the contributions to the various categories of property. The husband made contributions to his defined benefit superannuation pension over 32 years which predated the parties' cohabitation. The wife's own defined benefit superannuation was substantially accrued by her prior to the parties' marriage.
5. There were no direct contributions by the wife to the DFRB pension nor by the husband to the wife's defined benefit scheme superannuation. Any indirect contributions were, given the length of the employment and the length of the marriage minor.
6. Having regard to the husband's significant initial contributions, the length of the relationship (and the parties' other assets), I assess the overall contributions as favouring him 70/30.
7. It is necessary to consider whether any of the matters in s79(5) of the Act would result in an adjustment to the parties' contribution-based entitlements in order to ensure that the resulting orders are just and equitable.
8. It has long been considered that the Court may, when considering what, if any, adjustment is appropriate between parties to a marriage, consider the contributions which one party has made to a child from a previous marriage in reliance upon s 75(2)(o) of the Act (as it was prior to 10 June 2025).
9. In Robb & Robb (1995) FLC 92-555 the Full Court said in circumstances where one party did not have a legal obligation to provide financial or non-financial contributions in respect of a child but did in fact provide financial and/or non-financial contributions for a child then such a matter may be addressed as a matter arising under s 75(2)(o) of the Act.
10. Amendments to s 79 have removed the reference to matters listed in s 75(2) and instead, s 79(5) permits a Court to have regard to listed matters under the heading "Considerations relating to current and future financial circumstances". This raises the question as to whether past contributions (financial or non-financial) can be considered under s 79(5)(v) or whether that subsection is limited to matters relating to "current and future financial circumstances". While a heading will not generally be regarded as an operative part of the Act, it is regarded as indicative of the intent of what follows. Here the reference to "considerations relating to current and future circumstances" does not only appear in the heading but appears in s 79(3)(b)(ii). This would appear on a plain reading to confine the considerations which may be taken into account pursuant to s 79(5)(v) to matters relating to current and future financial circumstances. This would appear to preclude consideration of past contributions under this catch-all. It is not immediately apparent that such contributions may be considered under any other sub-paragraph.
11. The solicitor advocate for the wife submitted that the consequence of the amendments was to preclude consideration of such contributions under s 79(5)(v) because they did not pertain to the current and future financial circumstances of either party. King's counsel for the husband accepted that s 79(5) is said to relate to current and future financial circumstances but that it did not appear to have been the intention of Parliament to legislate in a manner which impacted upon the capacity to recognise such contributions. The failure to refer to this consequence in the Second Reading Speech was said to indicate that there was no intention to alter the existing position.
12. The husband submitted that it was necessary to have regard to s 79(5) in its entirety to interpret s 79(5)(v). Section 79(5)(d) which is directed to consideration of "material wastage" is plainly retrospective in nature notwithstanding the words in s 79(3)(b)(ii), as is the reference to one party's contributions to the income-earning capacity, property and financial resource of the other in s 79(5)(n). By analogy, the husband submitted that s 79(5)(v) might be deployed to consider financial contributions to children of one's spouse for whom one did not have a legal obligation. It was submitted that past financial acts (wastage or contribution to stepchildren) have an impact on the current financial circumstances of the parties.
13. The High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at 381-382 (McHugh, Gummow, Kirby and Hayne JJ) said:

Conflicting statutory provisions should be reconciled so far as possible

1. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
2. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

1. It is necessary to consider whether the fact of having introduced the words "current and future financial circumstances" was intended to displace the existing capacity to consider all matters which may retrospectively touch on the justice and equity of orders adjusting the interests of the parties. In the absence of evidence supporting such an intention and construing this remedial legislation as a whole, I am satisfied that it remains permissible to take into account past financial contributions to the children of a spouse where justice and equity requires. This is because such contributions may be regarded as having had an impact on the current financial circumstances of that spouse. In that regard the husband made contributions to the wife's child of a previous relationship (including significant contributions to rent, bond and educational expenses) which I have regard to when considering the orders which would be just and equitable.

1. I find that the birth of the parties' child had an impact on the wife's income, her earning capacity and contributions to her superannuation entitlements. She left full-time work in late 2016 and did not start working full-time until early 2023.
2. The wife has re-entered the work force after a break which involved long service leave and maternity leave followed by casual and part-time work. The wife's income and earning capacity have been impacted by time out of the work force. The employment opportunities available to the wife given her age and past work force participation support the conclusion that the wife is exercising her present earning capacity.
3. The wife has a requirement to provide housing for herself and the parties' child who lives with her on a half time basis.
4. The husband's current income from all sources is substantially greater than that of the wife. Even if the husband were to cease work, he will retain a significant income in the form of his pension.
5. The wife is 51 years of age and the husband is 59 years of age. Two things arise from this: the first is that the wife will not meet a condition of release for her superannuation for some time, the second is that she may be expected to have a longer period in the workforce than the husband.
6. I have above identified the existing assets of the parties, but it is necessary to have regard to the use which the wife has had of property which existed at separation when considering the parties' respective entitlements. The wife received the benefit of monies paid to her pursuant to s 79 of the Act. Those funds totalled $290,000. The wife also received $60,000 from the parties' joint funds. The husband applied funds outlined above to paid legal fees. Those funds are not represented in the above table of the parties' property and, accordingly, must be taken into account as impacting the current financial circumstances of each, if the resulting orders are to be just and equitable.
7. I am weighing the wife's receipt of funds after separation (discussed above) as a matter which relates to her current financial circumstances (having permitted payment of the deposit on real property and a car, not otherwise recognised in dollar value, in my assessment).
8. I am satisfied that having regard to those s 79(5) matters which favour the husband: past financial contributions to the wife's child, his shorter prospective workforce participation and the wife's receipt of significant funds after separation (both by court order and otherwise); and those which favour the wife: lesser income and earning capacity, significantly lesser defined benefit superannuation entitlements, impact of parenting on workforce participation and superannuation both retrospectively and prospectively, it is appropriate that there be a further adjustment in favour of the wife calculated by reference to the pool which contains property and accumulation superannuation interests.

1. I do not propose to make a splitting order in respect of the husband's DFRDB pension, not because I cannot make such an order but because two factors persuade me that it would not be just and equitable: the first is that the husband's interest was almost entirely the result of his employment predating the parties' relationship and the second is his age.
2. The fact that I do not propose to make an order which splits this interest does not mean that I can ignore its significant value to the husband as an income stream.
3. I propose to exclude both parties' defined benefit interests from the assets against which I propose to make adjustment orders. That is because inclusion of them as assets and recognition of their value as an income stream would potentially result in double counting.
4. The reality of this approach, however, is that there will need to be an adjustment to the pool containing the assets and accumulation superannuation in order to ensure that the resulting orders are just and equitable. In my view a further adjustment of 5 per cent to the wife is an appropriate way to recognise the matters set out above (those which favour her balanced against those which favour the husband).
5. The result is that the husband will receive:

(a) Suburb B property $1,895,000

(b) Motor Vehicle 1 $55,000

(c) NAB account #1413 $216,803

(d) NAB account #6807 $46,300

(e) NAB Cherokee trust account $36,077

(f) E Bank account $7,369

(g) Cherokee consulting invoice $13,068

(h) Tax debt ($9,523)

(i) Estimated tax/super liabilities

(k) Payment to wife ($400,000)

(l) Super Fund 1 $254,866

1. In addition, the husband will have his pension entitlements, with a capitalised value of $2,873,570.60 (or a present annual income of $196,000).
2. And the wife will receive:

(a) Interest in Suburb B Not valued

(b) Motor Vehicle 2 Not valued

(c) NAB Trading account Negligible

(d) NAB account $2,294

(e) Payment from husband $400,000

(f) Super Fund 1 $89,354

1. In addition, the wife will also receive her defined benefit superannuation entitlements with a capitalised value of $576,800 (or annual value if taken as pension of $37,416 per annum at time of valuation).
2. In order to ensure that the resulting orders are just and equitable, it is necessary to make an adjustment measured against the pool of assets and accumulation superannuation. Taking into account the assets which the wife has in her possession, it is necessary for the husband to pay her the further sum of $413,808 to ensure that she receives 35% of the assets identified above at [43] of my reasons.

1. The appeal has succeeded on an error of law. The wife submitted that the error was induced by the submissions in the husband's case, therefore justifying a costs order against the husband. As indicated above, there is some force to that argument. However, ultimately that fact persuades me that the wife should have the benefit of a certificate but the husband ought not.

I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie.