Contributions to hurt on duty pension
Conclusion about contributions to the s.10 pension as it stood prior to 20 June 2015
- Both counsel based their submission on the compartmentalised approach and there is some attraction in adopting this approach because it leads to a readily explicable outcome. However considerable difficulty arises in using this approach when there are differences of opinion about the value of the components as there are here and when I cannot definitively resolve one of the differences.
- In view of the fact that there can be legitimate disputes about the value of the two components of the pension I feel considerably more comfortable with the approach of recognising that the pension has two components but making a broad general assessment of contributions than the approach of breaking the pension down into components and assessing contributions to each component and adding them up.
- There is also considerable force in the opinion of Judge Altobelli that to give a party credit for contributing to the level of payments received during the compensation period is flawed when it is not suggested that the person receiving the pension should receive credit for the post-separation wages received by the other party.
- There is certainly evidence that the wife in the case before me supported the husband in his police career. She supported his transfers to (omitted) and then (omitted); she followed him to these locations as soon as she was able consequent upon her employment. She played her part as homemaker and parent which assisted him in pursuing his career and the fact that he stayed in the police force as long as he did and thus increased his salary has had an impact on the amount he is now receiving. However there is also force in the submission by the husband’s counsel that the husband supported the wife in her career and it was not suggested that the wife’s salary between now and retirement should be capitalised and the husband assessed as having made a contribution to it.
- There is evidence that the wife provided support to the husband when he was injured but it was not extensive in the context of the length of the marriage overall nor was it out of the ordinary in terms of impacting on the wife’s capacity to maintain employment or raise the parties child, and there is force in the submission by the husband’s counsel that just as the husband does not receive any adjustment or special recognition for supporting the wife when she suffered an injury during the marriage her support of him should not attract an adjustment in the context of determining contributions to his hurt on duty pension.
- There is force in the observation of Judge Altobelli that it is difficult to justify a finding that the one party has contributed to the compensation component when all they can claim is to have supported the other party in their career, and there was almost nothing more than that in this case.
- Further compounding the difficulty for me is that the husband’s counsel seemed in one part of her submissions to be asserting that the wife could not be found to have contributed to any part of the compensation component but later proposed a finding that the wife had made a 5% contribution to this component.
- On the facts in this case I do not consider that the wife should be treated as having made a contribution to the compensation component of the pension whatever that might be but the parties were together for 23 years and almost the entirety of the husband’s entitlement, which will carry over into retirement, accrued during that period, a period moreover when the parties made equal contributions to the acquisition conservation and improvement of the non-superannuation assets.
- The husband was 48 when he began receiving the pension so even with a retirement age of 65 a very substantial part of his benefit may be attributable to the retirement period.
- In my view a contribution assessment of 30% would be appropriate given that the parties were together for almost the entire time the husband was in the fund and the wife has a strong claim to an equal finding on contributions to at least part of the pension.
- This results in an outcome consistent with most of the outcomes in other cases (noting of course their different fact scenarios). It is .5% higher than the amount Mr P suggested was appropriate if the retirement age of 60 was used but .5% is not significant in the overall scheme of things. It should not be seen as an acceptance of the retirement age of 60 as being appropriate but rather as an attempt to do justice and equity in a situation where the husband’s pension accrued almost entirely during a long relationship but contains a component attributable to his ceasing work in the police force at the age of 48.
- If the wife was entitled to 30% of the husband’s pension as it stood at 11 March 2014 she would be entitled to $335,695.59.