MacKinnon & Talbot [2022] FedCFamC2F 1738

MacKinnon & Talbot [2022] FedCFamC2F 1738

Relationship Details

• Type: De facto
• Duration: Relationship commenced around mid-2009 and ended in July 2015, totalling approximately 6 years.
• Ages at Judgment: Applicant (the male partner) 62 years old, Respondent (the female partner) 60 years old.
• Before cohabitation: The parties met in about 2005 and had a relationship for several years before living together. The respondent had earlier contested whether there was a de facto relationship, then conceded it.

Children

• Children from Relationship: None.
• Children from Previous Relationships: Respondent has a son, born in 1997, from a previous relationship, who lived with the parties.

Initial Financial Positions

• Applicant:

  • Superannuation balance: Approximately $12,000.
  • Owned a motor vehicle and some motorcycles.
  • Had accumulated tools and personal effects.

• Respondent:

  • Owned two properties, her home at M Street, Suburb E and a strata unit at P Street, Suburb Q, and superannuation: about $559,290 in all.
  • Contributed major financial resources toward property purchases and renovations.

Contributions During the Relationship

• Financial Contributions:

  • The respondent bought the B Street, Suburb C property in her name in January 2010 for $709,000, funded from the sale of her unit and later her house. The applicant was involved in finding and choosing it.
  • Applicant contributed limited amounts towards household expenses except during renovation periods.

• Non-financial Contributions:

  • The applicant undertook renovation work on the properties, leaving paid work for long periods. His first renovation of the B Street property failed and had to be removed; the respondent said the second was mostly incomplete.
  • Care contributions to the respondent's son, though contested in extent.

Post-Separation Contributions and Actions

• Financial Contributions:

  • The respondent reduced the mortgage on the B Street property from $750,000 to $686,698 and kept contributing to her superannuation.

• Non-financial Contributions:

  • The respondent and her son lived in the B Street property for the five or so years to trial. The applicant rented, then lived in his motorhome.

Current Financial Position & Property Pool

• Respondent:

  • Primary assets include B Street, Suburb C with a mortgage.
  • Superannuation valued at $231,429.
  • Net position in the property pool: $1,292,012.

• Applicant:

  • Superannuation valued at $32,724.
  • Net position in the property pool: $80,437.

• Total property pool: After adjustments and liabilities ($686,698 mortgage on B Street, Suburb C), the net pool valued at $1,372,449.

Assessment of Contributions and Future Needs

• Contributions:

  • Respondent contributed overwhelmingly greater financial resources towards the relationship property; the trial judge assessed contributions at 87.5% to her and 12.5% to the applicant.

• Future Needs Adjustments:

  • Adjustment of 5% in favour of the applicant under s 90SF(3), for his care of the respondent's son and the difference in the parties' financial positions.

• Final Division at trial: Applicant 17.5% ($240,179) of the property pool, Respondent 82.5%. This was changed on appeal (see below).

Unique Aspects

• Considerable evidence around contested renovations and financial contributions, including contributions made before cohabitation.
• The applicant's contributions to raising the respondent's son were taken into account under s 90SF(3).
• The applicant admitted not declaring cash income to the ATO for years, which damaged his credibility.
• The trial judge did not treat the respondent's long post-separation occupation of the home as relevant to the applicant's contributions. The appeal court found that was an error.

The trial orders required the respondent to pay the applicant $159,742. That order was replaced on appeal by a payment of $296,986.

Appeal

The applicant appealed. In MacKinnon & Talbot [2023] FedCFamC1A 156 (19 September 2023) Riethmuller J allowed the appeal on two grounds: the trial judge had not taken into account the applicant's part in finding and buying the B Street property, or the respondent's occupation of it for about five years after separation. Re-exercising the discretion, the court assessed the applicant's contributions at 22.5%, kept the 5% adjustment, and divided the property 72.5% to the respondent and 27.5% ($377,423) to the applicant. Order 1(a) was replaced by an order that the respondent pay the applicant $296,986 by 31 October 2023.

The law since this decision

This case was decided before 10 June 2025. From that date the Family Law Act 1975 (Cth) sets out the steps for a property settlement in s 90SM(3) to (5), and the court must consider the effect of family violence on each party's contributions (s 90SM(4)(ca)) and on their current and future circumstances (s 90SM(5)(a)), and any material wastage of property (s 90SM(5)(d)). In Western Australia, a property case between married couples is decided under that Act in the Family Court of Western Australia. A case between de facto partners in Western Australia is decided under the Family Court Act 1997 (WA), which has not adopted those 2025 changes.