Submissions regarding hurt on duty

Submissions regarding hurt on duty pension

Jasper & Thorp

The parties submissions

125. Both counsel made submissions about the appropriate outcome if the fund was still worth $1,118,985.31.
126. The wife’s counsel submitted that the wife should be considered to have made a 20% contribution to the compensation part of the husband’s superannuation based on her contributions to his police career and her care of him when he was hurt and a 50% contribution to the retirement portion of the superannuation on the basis that the entirety of it accrued during the relationship.
127. Based on the valuation of the components for which the wife advocated this would entitle her to $486,447.31. On the valuation of the components Mr P advocated for if the retirement age was 60 it would entitle her to $421,939.35 or 37.5% of the superannuation.
128. On the valuation of the components to age 65 it would entitle her to $359,692.00 which is 32% of the pension.
129. The husband’s counsel submitted that the wife should be taken as having made a 5% contribution to the compensation component of his superannuation but conceded a 50% contribution to the retirement component.
130. On the component breakdown using the age of 65 the husband’s counsel submitted that the wife was entitled to split of $259,642.74 or about 23.5% of the pension.
131. It is interesting to compare these outcomes to the outcomes in other s.10C cases.
132. In T & T and Schmidt & Schmidt Watt J applied different percentages to different portions of the entitlement but in both cases the overall outcome was that the wife received 20% of the capitalised value of the pension.
133. Of course Schmidt & Schmidt involved a 7 ½ year marriage and T & T involved a 10 year marriage and a situation where the husband had been in the police force for 10 years before the relationship commenced. In the case before me the parties lived together for 23 years and the husband’s entitlement to a pension arose almost entirely during the marriage.
134. In Darcy & Darcy I assessed contributions by the wife as being 30%. The husband had been in his fund for a period of time before commencing his relationship with the wife but the wife provided years of support to the husband while he fought for and obtained his s. 10C pension and supported him within the household while he was significantly ill at the same time as parenting young children.
135. In Crawford & Crawford Judge Altobelli assessed contributions by the husband to the wife’s s. 10 pension as 18% but only because the wife proposed that; left to himself he said that he would have fixed on 15%. That case involved a 20 year marriage with three children and the wife had been in her fund for about 3 years before the relationship commenced.
136. Crawford & Crawford post dates the amendment to s. 14P of the PRSA but each party in that case called expert evidence which placed a value on the pension as if it had two components.
137. Just as in the case before me the experts disagreed about whether the appropriate retirement age if the pension was divided into components was 65 or some other age.^[6] One expert also contended that once a Hurt on Duty pension had been granted retirement age was no longer a relevant concept although conceded that the pension could be broken down into components.
138. Judge Altobelli did not attempt to resolve the dispute about the retirement age and said as follows:
     Ultimately, neither Mr B nor Mr S’s expert evidence directly assists the court in assessing whether, and if so to what extent, the husband has made a contribution to the wife’s pension. Indirectly, however, their evidence confirms that in reality the wife’s pension does have some component to it that is not exclusively referable to her injury. To that extent the husband must have contributed to it, a fact conceded by the wife who submits his contribution should be assessed at 18 per cent. ^[7]
139. Judge Altobelli was not attracted to the submission that the husband had made a contribution to the compensation component of the wife’s superannuation whatever it might be and although he accepted that the pension had two components he made a broad brush assessment of contributions overall rather than assessing contributions as two separate components. He said as follows:
     Given that the husband’s own expert, Mr S, conceded that the value of the wife’s pension consisted of both a compensation and a retirement component, it is hard to understand, let alone accept the husband’s submission which seems, with respect, to gloss over the “nature, form and characteristic of the wife’s pension”, or pay mere lip service to this fact. Once it is accepted that a sizeable component of the value of the pension merely compensates the wife for the income she is no longer earning, there can be no logical basis for claiming to have contributed to this. To accept the husband’s logic invites a further logical step – to consider the husband’s post-separation income as some form of property to which the wife can claim to have contributed. What the husband contends for is beyond the bounds of current family law jurisprudence, and authority.

A close examination of the husband’s evidence reveals that there is in fact little that he contends he contributed as a direct result of the wife’s retirement. At paragraph 22 of his affidavit sworn 25 October 2012 he explains that between 7 April 2006 when the wife retired, and 10 May 2009 when they separated, she did not work. Thus he contributed during this period as the sole breadwinner, though the evidence of the wife indicates that she was receiving her pension as well as some lump sum payments referrable to her retirement. If the husband’s case is that he did make significant contribution to the compensation component of the wife’s pension, it is a poorly articulated case. The court accepts, however, that over a long marriage he did make a contribution to what Mr S described as the retirement component, without necessarily preferring Mr S’s methodology over that of Mr B.^[8]