Case Summary

Massey & Carmichael [2026] FedCFamC1A 139

FCFCOA (Division 1), Appellate Jurisdiction•Campton J•7 August 2026

Property settlement De facto (Pt VIIIAB) Superannuation Two-pool v global Contributions

Appeal allowed for inadequate reasons; discretion re-exercised; division varied to 61/39 in the appellant's favour

“

It is a matter for the primary judge to determine how to effect justice and equity by reference to s 90SM of the Act. It cannot be said that the primary judge denied the appellant the opportunity to place submissions as to why a superannuation splitting order ought to be made, or as to its value ... What the appellant chose to make of the opportunity to make her case and reply to the case of the respondent was a matter entirely for her.

Campton J at [54]

Summary

A de facto relationship of some 23 years, no children, and a pool the primary judge valued at $7,356,244. At trial both parties argued for a single global assessment of contributions combining superannuation and non-superannuation interests. The primary judge instead adopted a two-pool approach, assessing contributions to the available assets and liabilities at 65/35 to the appellant Ms Massey and contributions to the respondent's superannuation at 75/25 to the respondent, Mr Carmichael, with no adjustment for s 90SF(3) factors.

The procedural fairness ground failed. Applying Calder & Calder (2016) FLC 93-691 at [102], Campton J held that a Judge need not tell parties running a global case that a two-pool approach may be adopted; natural justice is engaged only where the approach produces an outcome outside the parameters of the competing claims, or where the approach to one pool was advocated by neither party. The superannuation split of $101,939.50 sat within the range agitated (nil to $200,000). The ground that superannuation could not lawfully be treated separately also failed: the discretion is settled by Norbis and Coghlan.

The appeal succeeded on adequacy of reasons. There was no evidence of the value of the respondent's superannuation at cohabitation or separation, and the broad observations in the trial reasons did not disclose the evidentiary pathway to the 75/25 figure, which was carried through to the overall result. On re-exercise, by agreement on a single pool with s 90SM(3) as amended removing the notional add-backs, contributions were assessed at 62% to the appellant with a 1% s 90SM(5) adjustment to the respondent: 61/39 overall.

Key Takeaways

✓

A judge need not warn the parties before departing from an agreed methodology. Procedural fairness bites only where the outcome falls outside the parameters of the competing claims, or the approach to a pool was advocated by neither party: [52]–[54].

✓

The discretion to assess superannuation contributions separately survives and needs no special evidentiary trigger: [59].

✓

What defeated the orders was the reasons, not the method: where the pool is segmented, the reasons must expose the evidentiary path to each intermediate percentage: [67]–[68].

✓

Without evidence of a superannuation interest's value at cohabitation and at separation, a segmented assessment of its growth is very hard to justify: [67].

✓

On re-exercise the Court applied s 90SM(3) as amended, so add-backs from a trial concluded before 10 June 2025 came out of the balance sheet: [85]–[86], citing Shinohara and Shehu & Vicario.