Carron & Laniga [2019] FamCAFC 115

In the case of Carron & Laniga [2019] FamCAFC 115, there were a number of matters raised on appeal and eventually the appeal was allowed on an issue of addbacks.  Of interest to the writer is a discussion about Military Superannuation. The court said:

“The husband contended without contradiction that the wife’s MSBS pension is paid under the Military Superannuation and Benefits Act 1991.“

The issue was that the husband had said that it was obligatory for a pension to be valued using the formula under the Family Law Superannuation Regulations.

The court found:

“In property settlement proceedings, there is no need to ascertain the capitalised value of a superannuation interest, much less one in payment phase being paid in the form of a non-commutable pension, unless a superannuation splitting order is sought in relation to the interest.

The Act only provides that a superannuation interest must be valued before it is amenable to a splitting order (s.90XT(2)) for which purpose the Family Law Superannuation Regulations 2001 (the Regulations) make provision for the manner in which the different superannuation interests are valued.”

The case is an interesting one in that in terms of contribution, the court determined that the division would be the husband’s contributions had warranted an entitlement to 55% of the net assets but under s.75(2) found that the final entitlements were 55% to the wife and 45% to the husband.

This type of flipping of contribution and need is not unusual in practice, but it is interesting to see in a case this very same alteration being made.