Super Split Saved the Appeal: Reasons Failed Because the Trial Judge Could Not Explain the 75/25 Superannuation Finding

In Massey & Carmichael [2026] FedCFamC1A 139, Campton J allowed the appellant’s property appeal because the primary judge’s reasons did not adequately explain the separate 75/25 contribution assessment applied to the respondent’s superannuation pool. The appellant failed on procedural fairness, failed to prove that a two-pool approach was legally unavailable, and failed on the valuation challenge to the respondent’s C Street property. But she succeeded because the reasoning pathway from the evidence to the superannuation percentage was missing. That defective reasoning affected the overall property division, so Orders 1 to 7 were set aside. On re-exercise, the Court adopted a single-pool approach, assessed contributions at 62% to the appellant and 38% to the respondent, made a 1% s 90SM(5) adjustment to the respondent, and ordered an overall division of 61% to the appellant and 39% to the respondent.

🧩 Facts and Issues

Facts:

The parties were in a long de facto relationship from about 1999 to early 2022. The appellant was aged 70 and the respondent aged 62 at the appeal. There were no children of the relationship.

At the start of the relationship, the appellant owned several real properties, including the J Street properties, which remained in specie at trial and had substantial value. She had been an educator but sustained a workplace injury in 1999 and thereafter received an invalidity superannuation pension of $778 per week, which could not be commuted to a lump sum and was treated as a financial resource, not property available for division.

The respondent worked throughout the relationship and accumulated superannuation. She also owned the C Street property, which she purchased in 1999. During the relationship, the parties acquired, renovated and sold multiple properties, including jointly owned property at Suburb H. The primary judge found that both parties contributed, but that the appellant made substantially greater renovation and project-work contributions.

At trial, both parties ran their cases on a global assessment basis, combining superannuation and non-superannuation property. The appellant sought an overall 90/10 division in her favour, including a $200,000 superannuation split from the respondent’s Super Fund 1 entitlement. The respondent sought equality and opposed any superannuation splitting order.

The primary judge instead adopted a two-pool approach:

1. non-superannuation assets and liabilities; and
2. the respondent’s superannuation entitlements.

The primary judge assessed contributions to the non-superannuation pool at 65/35 in favour of the appellant, but assessed contributions to the respondent’s superannuation pool at 75/25 in favour of the respondent. A superannuation splitting order of $101,939.50 was made in favour of the appellant.

Issues:

1. Was the appellant denied procedural fairness because the primary judge adopted a two-pool approach without warning the parties?
2. Was it legally or evidentially wrong to treat superannuation separately from non-superannuation property?
3. Were the reasons inadequate because they failed to explain the 75/25 superannuation contribution assessment?
4. Did that inadequate reasoning affect the overall property division?
5. Did the primary judge err in valuing the respondent’s C Street property at $2 million instead of $2.4 million?
6. Should the appeal court remit the matter or re-exercise discretion?
7. How should the already-implemented superannuation split be treated on re-exercise?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• Pt VIIIAB — financial matters relating to de facto relationships.
• s 90SM — alteration of property interests between de facto parties.
• s 90SM(3) — identification of existing property and liabilities.
• s 90SM(5) — adjustment factors, including future financial circumstances.
• s 114UB — costs in family law proceedings.

Federal Circuit and Family Court of Australia Act 2021 (Cth)

• s 35 — appellate power to draw inferences and receive further evidence.
• s 36 — appellate power to affirm, reverse, vary, or make orders the Court thinks fit.

Federal Proceedings (Costs) Act 1981 (Cth)

• Costs certificates were granted to both parties because the appeal succeeded by reason of legal error.

📌 Precedents Relied On

• House v The King — discretionary appellate error.
• Warren v Coombes — appellate restraint unless error is shown.
• Allesch v Maunz, Kioa v West, SZBEL, Ex parte Lam, and Stead — procedural fairness principles.
• Calder & Calder — a judge is not necessarily required to warn parties before adopting a two-pool approach, unless the approach produces an outcome outside the parties’ competing claims or adopts an unargued approach to a pool.
• Norbis v Norbis and Coghlan & Coghlan — superannuation may be treated separately from other property in an appropriate case.
• Bennett and Bennett, Yarrow & Yarrow, and DL v The Queen — adequacy of reasons; reasons must reveal why critical findings were made.
• Steinbrenner & Steinbrenner — warns against an unexplained leap from words to percentage figures.
• Jabour & Jabour, Dickons & Dickons, and Horrigan & Horrigan — contributions are assessed holistically and should not be mechanically compartmentalised.
• Shinohara & Shinohara and Shehu & Vicario — relevant to identifying existing property and liabilities under the amended property framework.
• Trevi & Trevi (Re-Exercise) — appellate court may re-exercise discretion using the facts and law as they stand at the appeal.

🧠 Analysis

Issue

Why did the appeal succeed when the appellant failed on procedural fairness, failed to show that a two-pool approach was unavailable, and failed on the valuation challenge?

Rule

A property appeal does not succeed merely because another percentage could have been chosen. The appellant must establish legal, factual, discretionary or procedural error, or inadequate reasons.

A trial judge has discretion to treat superannuation separately from non-superannuation property. Superannuation can have a different character from other assets, particularly where one party is nearing retirement, one party has an accumulation interest, and the other has a different retirement structure such as an invalidity pension.

But if the judge adopts a separate superannuation pool and assigns a distinct contribution percentage to that pool, the judge must explain the reasoning pathway. The parties must be able to understand why the figure was chosen. A bare conclusion such as “75/25” is not enough where the evidence does not clearly disclose how that figure was reached.

Application

1. The procedural fairness ground failed

The appellant argued that the primary judge denied procedural fairness by adopting a two-pool approach when both parties had argued for a global approach.

That argument failed. Campton J held that the live issue at trial included whether there should be a superannuation split from the respondent’s accumulation interest, and if so, how much. The appellant herself sought a superannuation split of up to $200,000, while the respondent opposed any split.

The primary judge was not required to tell the parties in advance exactly how he intended to reason through the discretion. The outcome — a split of $101,939.50 — was within the range between nil and $200,000.

So the appellant did not win because the two-pool approach was sprung on her unfairly.

2. The two-pool approach was not legally wrong

The appellant also argued that there was no legal or evidentiary basis for treating the respondent’s superannuation separately.

That failed too. Campton J accepted that well-established authority permits a judge to treat superannuation separately from non-superannuation property. It is a discretionary methodology available in appropriate cases.

The relevant considerations included:

• the respondent had some superannuation at cohabitation, although its value was unknown;
• the respondent remained employed during and after the relationship;
• her employment generated further superannuation;
• the appellant’s support enabled the respondent to remain employed; and
• the appellant’s own invalidity pension was of a different character and not property available for division.

So the appellant did not win because superannuation can never be separated. Superannuation can be separated. The problem was the explanation.

3. The appeal succeeded because the reasons did not explain 75/25

The critical error was in the reasons for assessing the respondent’s superannuation pool 75% to the respondent and 25% to the appellant.

The primary judge said the respondent had superannuation at the start of the relationship, worked throughout the relationship, and that the appellant’s support enabled her to keep working and accumulating superannuation. But those observations did not explain why the correct division of the superannuation pool was 75/25.

There was also no evidence of the value of the respondent’s superannuation at cohabitation or separation. That made the segmented assessment difficult to justify. Without knowing how much superannuation existed at the start, how much accumulated during the relationship, and how much accumulated after separation, the reasons needed to be especially clear. They were not.

Campton J held that the broad observations in the reasons failed to reveal the pathway from the evidence to the intermediate conclusion. That was the winning appeal point.

4. The defect mattered because the super finding affected the whole result

This was not a harmless reasoning defect. The separate superannuation assessment was carried through into the final property division.

The primary judge’s non-superannuation contribution finding favoured the appellant 65/35, but the superannuation contribution finding favoured the respondent 75/25. That reduced the appellant’s overall position compared with a global application of the 65/35 assessment. The appellant estimated the difference at about $160,000, broadly equivalent to just over 2% of the total pool.

Because the unexplained 75/25 superannuation finding was a component of the final orders, the reasoning defect infected the overall result. That is why Orders 1 to 7 were set aside.

5. The C Street valuation challenge failed

The appellant argued that the respondent’s C Street property should have been valued at $2.4 million on a highest-and-best-use basis rather than $2 million on an “as is” basis.

That ground failed. The valuation evidence showed two possible approaches. The single expert valued the property as a whole at $2 million, but also gave a hypothetical separate-lot valuation of $2.4 million if the lots were sold separately. That separate-lot approach depended on assumptions and unknowns about development, separate sale, costs, risk and market demand.

Campton J held that the primary judge had considered the expert evidence, the survey and sewerage material, the development uncertainties and the likely market. The finding of $2 million was reasonably open.

So the appeal was not won on valuation. It was won on inadequate reasons concerning superannuation.

6. The superannuation split itself was not disturbed

This is an important practical point. The appellant limited the appeal to Orders 1 to 7. The superannuation splitting orders — Orders 8 to 12 — had already been implemented and were not disturbed.

On re-exercise, the Court therefore treated the implemented split as part of the existing property position. The balance sheet showed:

• respondent’s Super Fund 1: $258,646;
• respondent’s Super Fund 2: $47,172;
• appellant’s Super Fund 1: $101,940;
• total superannuation property: $407,758.

That is a critical superannuation consideration: once a super split has been implemented and is not challenged or disturbed on appeal, the re-exercise proceeds on the property position as it then exists.

7. The appellant’s invalidity pension was treated differently

The appellant received an invalidity superannuation pension of $778 per week. It was agreed that this pension could not be commuted to a lump sum and was not property amenable to adjustment. It was treated as a financial resource, not divisible property.

This mattered because the parties’ retirement resources were structurally different. The respondent had accumulation superannuation capable of being split. The appellant had an income stream that could not be converted into a lump sum.

The primary judge was entitled to consider those differences. But when those differences were used to support a separate superannuation contribution assessment, the reasons still had to explain the actual percentage chosen.

8. On re-exercise, the Court returned to a holistic single-pool approach

On re-exercise, both parties accepted that the Court should use a single pool of superannuation and non-superannuation property and liabilities. Campton J accepted that approach as just and equitable, while still having regard to the nature and character of each asset.

The net property pool was identified as $7,014,309. This included existing superannuation interests after implementation of the earlier super split.

Campton J assessed contributions at 62% to the appellant and 38% to the respondent. The appellant’s initial property contributions, the use of those properties to build wealth, and her greater renovation contributions carried significant weight. But the respondent’s employment, homemaker contributions, initial C Street property, and continued post-separation superannuation contributions also mattered.

9. The respondent received a 1% adjustment because of future financial circumstances

After contributions, the Court considered s 90SM(5) factors.

The appellant would hold superior property interests, including income-producing real estate, and would continue to receive her superannuation pension. The respondent was likely to retire in the foreseeable future and would need to support herself from her now-reduced superannuation entitlements. She would not have potential rental income from C Street if she lived there.

Campton J also compared benefits each party had already received from liquidated property and capital used for legal fees. The appellant had received or used about $224,488, while the respondent’s comparable benefit was $117,447.

Those factors justified a 1% adjustment to the respondent, producing a final division of 61% to the appellant and 39% to the respondent.

Conclusion

The appeal was allowed because the primary judge failed to give adequate reasons for the 75/25 superannuation contribution assessment.

The appellant failed to prove procedural unfairness, failed to show that the two-pool methodology was unavailable, and failed on the C Street valuation challenge. But Grounds 3 and 4 succeeded because the reasons did not reveal how the primary judge moved from the evidence to the separate superannuation percentage. That unexplained finding was carried into the overall property result, making the reasoning process defective.

On re-exercise, Campton J:

• set aside Orders 1 to 7;
• left the implemented superannuation split undisturbed;
• used a single pool including superannuation and non-superannuation property;
• assessed contributions 62/38 in favour of the appellant;
• made a 1% s 90SM(5) adjustment to the respondent;
• ordered an overall division of 61% to the appellant and 39% to the respondent; and
• ordered the appellant to pay the respondent $634,126 if she retained the Suburb H property.

Both parties received costs certificates. The appellant’s application for the respondent to pay her appeal costs of $21,080.83 was dismissed.

🧠 Take-Home Lesson

This case is not authority for the proposition that superannuation must always be treated globally with the rest of the pool. It confirms the opposite: a judge may treat superannuation separately where that is a proper way to achieve justice and equity.

But if the Court creates a separate superannuation pool, it must explain why the selected percentage is justified. That is especially important where:

• the value of superannuation at cohabitation is unknown;
• the value at separation is unknown;
• one party’s superannuation is an accumulation interest;
• the other party has a non-commutable pension treated as a financial resource; and
• the percentage applied to superannuation materially changes the final outcome.

The winning appeal point was the missing reasoning bridge. The primary judge could say superannuation should be looked at separately. What the primary judge could not do was leap from broad findings to 75/25 without explaining the evidentiary pathway.

For property appeals, the lesson is sharp: a superannuation split may be discretionary, but the reasons for it must still be intelligible.