Court gets in a JAM trying to CONSERVE superannuation

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The so called superannuation reforms to the FLAct have taken longer to be made flesh than the so called second coming of JC, but starting Dec 2002 we finally have the so called "splitting" reforms which allow formerly named inalienable super (ie super which Buttercup could not get her little greasies upon because bloke was not yet 55 or so) to come under the definition of property in the FLAct, with all the possible changes to case law that might entail/entrail.

We now have a case, but in the FMS and not the FCA. As we know, the CJ of the FCA announced his retirement, but having then got bypassed for the position vacated in the High Court by Mary Gaudron's (unfortunate) retirement he then announced his "non retirement" so that he could preside over the new super reforms.

But 5 months into the so called reforms there is not one published case before a judge at first instance in the FCA, let alone the Full Court, BUT we have a case before the FMS. It is H & H [2003] FMCAfam 41 (you can read it [and weep if you are a bloke] at the FMS site). Obviously the H & H judgement may well be "overturned" by possible precedents/authorities in the FCA but at present this is the only case we can use to gauge the so called reforms and IMHO it is a Barry Crocker.

In H & H it was said:

23. Before the 1998 extensions started the husband put a new roof over the front of the house and also replaced a double door and door jam.

OK, the "scribe" who wrote up this case appears to have as much command of the English language/history (not) as the scribe hereunder who confused the Vietnam War with some mythical Victorian War. Indeed the thing "what stops the door" is a jamb and not a jam.

I should also note that the Victorian War blooper was corrected the very next day after I posted my article, so it seems those in power DO read the learned thoughts of the Divorce Doctor, AND react.

To return to the jam case, the bottom line is the parties got 50/50 contribution share wise, with a further 15% adjustment under s 75(2) matters, ie a 65/35 split in favour of Buttercup - and that ratio also applied to the super, which was of course treated as part of the pool of assets under the reforms. Was that fair? Well let's look more carefully at the method behind the numbers.

Step 1 - Contribution

As you will know (from Horsley) the court must use a 2 step process in property cases, ie after initially establishing the total property or pool of assets. The first step is to establish the contribution share of the parties and you will see that this was a typical case where bloke actually brought some property into the relationship (so according to Crawford, Pierce etc should have got credit for say 60/40 at step 1), and also slaved his guts out doing renovations while Buttercup sofa loafed, watching Jerry Springer and Oprah (so should have got more credit for that also).

It is a great pity bloke did not spend his time surfing the web, where he would have seen my warning about such terminal behaviour at my own "lifestyle" site. Here is a brief extract from my site, describing the folly of renovations I did 30 years ago and the Blue Warning I did 3 years ago. Please take a look and use BACK to return here.

So bloke put in all the hard slog both at home as well as at work but only got 50/50 recognition for contribution. But to really twist the knife the beak said:

As far as possible she cared for the children so that they did not interrupt their father whilst he studied or worked on the property.

In other words Buttercup screams at kids from the sofa to not interrupt dad while he is fixing HER jams, and gets 50/50 for it. Now any real father (ie as distinct from some hairy legged lesbian from RA or AIFS peddling so called parenting skills) will know that character building for kids can be greatly enhanced by "helping dad" fix the house. It matters not that neither dad or kids will get any financial benefit from the exercise, but in this case the court condones both the DIP (Divorce Investment Portfolio) of Buttercup and the denial of dad/kid melding.

Step 2 - Adjustment

The s 75(2) matters are treated in the normal "nebulous soup" manner as I referred to such method in Mahoney case. This means the court goes through the list of matters, says some get Buttercup an unspecified adjustment and some even get bloke an unspecified adjustment, and concludes with a big fat global percentage - in this case 15% to Buttercup. The reason such method offends Horsley (in slightly different context) is simply that it is impossible to appeal, because we are not to know the makeup of the 15%. The truth is that the FLIndustry has been setting this method up for years, waiting until this very moment when super jumps out of s 75(2) into the pool of assets.

The bottom line is how much do we reduce s 75(2) to compensate for fact super is no longer in the nebulous soup. A Buttercup with 3 kids before the reforms would have been what the FLIndustry calls "a walk-up 75%" ie 25% adjustment, so it seems the beak in this case has subtracted a nominal 10% to give 15% adjustment. So let's see how this all works before and after the reforms.

Because I use Excel for all my court forms, my version of Form 12A automatically does the maths for the pool of assets. So here are the numbers from the case, but with BillyGates doing the maths. Please take a look and use BACK to return here.

As seen the beak got the maths wrong (as usual) - like just try adding up the columns yourself from the judgment and you will be amazed that the result @ 65.37% to Buttercup was only .37% out!!!!

I have then done the numbers again for the hypothetical pre reform situation of bloke keeps his super but Buttercup gets 25% in her DIP slush fund, ie 75% overall. So here are the other numbers. Please take a look and use BACK to return here.

As you will see from the calcs I have asked Billy to do at the bottom of the page bloke lost $85,999 from his super for the sake, under the hypothetical, of paying just $15,101 extra to Buttercup to buy out her share of the home (which was the form of the order made by the beak). Billy says bloke was worse off by $70,898 for the so called reforms - or 569% worse off if one used the beloved FLIndustry "percentages".

So this all might indeed conjure up Led Zeppelin type sentiments as per "I been working from 7, to 7, to 7, to 7 every nite - that just don't seem right?? - since I been luvin you baby, I'm about to lose my worried mind". Is there a logical explanation for how this all works? As much as blokes try to make this all very complex, the KISS principle offers the normal solution.

The first simple move by Buttercup is explained by the beak:

30. In May 2001 the wife told the husband that she no longer loved him. He moved into the study.

So after all the hard work, love and devotion Buttercup simply says (on advice from her parasite) the fairy floss has worn off so bring on my DIP!!

Firstly a bloke might shrug off a 15% adjustment to Buttercup by saying "she only gets 15% more than me!!" - Think again sucker, 65 divided by 35 = 1.85714, ie 86% more than you and not 15%. Are you starting to understand?

Secondly in this so called global approach the percentage applies to the whole pool of assets so by adding the super to the pool we have the situation here where 15% of post reform pool is almost identical to 25% of pre reform pool (but bloke now loses 80 grand from his super as well).

Thirdly, why does the 15% adjustment need to be applied to the super as well - surely that is double dipping. The court is quite at liberty (the asset by asset approach) to divide the super as to 50/50 and apply the 15% (or zero) to the rest of the pool. After all the beak actually notes the "if relevant" bit:

I must then evaluate the matters contained in s.75(2) insofar as they are relevant, any other order made under the Act affecting a party or child and any child support under the { TA \l "Child Support (Assessment) Act 1989" \s "Child Support (Assessment) Act 1989" \c 1 }Child Support (Assessment) Act 1989 that a party to the marriage is to provide, or might be liable to provide in the future, for a child to the marriage.

I am not sure why he needs to consider the CSA 3 times!!!! However that may well be because, if things go to plan, the bloke will be dead by suicide long before he gets to see his 35% remaining super, now he has been passed from the FLIndustry minus the shirt on his back, to the CSA Industry (where he will be required to bare much more than his back).

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