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MacKinnon & Talbot

MacKinnon & Talbot

Case [2022] FedCFamC2F 1738 16 December 2022

Unconscionable Conduct

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Federal Circuit and Family Court of Australia
(DIVISION 2)
MacKinnon & Talbot [2022] FedCFamC2F 1738

File number(s): SYC 3345 of 2017

Judgment of: JUDGE MORLEY

Date of judgment: 16 December 2022

Catchwords: FAMILY LAW – property – final property settlement orders sought by Applicant – Respondent’s case that it is not just and equitable to make any property settlement orders – previous contested de facto threshold proceedings conceded by Respondent – strong inference that Applicant evaded income taxation for several years – resultant issues of credit with each party – Respondent holds significant portion of asset pool – Applicant’s contributions inter alia as homemaker and by renovations to Respondent’s real property including pre-cohabitation – consideration of contributions made pre-cohabitation – just and equitable to make an adjustive order.

Legislation:
Evidence Act 1995 (Cth) s 50

Family Law Act 1975 (Cth) ss 90SF, 90SM, 90SN, 117

Cases cited:
Bacall & Zagar [2020] FamCA 350

Beneke & Beneke [1996] FamCA 82

Dickons & Dickons [2012] FamCAFC 154

Fields & Smith [2015] FamCAFC 57

Fontana & Fontana [2018] FamCAFC 63

G and G [1984] FamCA 60

Grier & Malphas (2017) 55 Fam LR 107

Hamilton & Thomas [2008] FamCAFC 8

Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395

Hsiao v Fazarri [2020] HCA 35

In the Marriage of Harris (1991) 104 FLR 458

In the Marriage of Nemeth [1987] FamCA 12

In the Marriage of Robb (1994) 18 Fam LR 489

Jabour & Jabour [2019] FamCAFC 78

Jones & Dunkel (1959) 101 CLR 298

Lozanov & Lozanov [1994] FamCA 60

Olliver & Olliver [1978] FamCA 24

Sedgwick & Lind [2021] FamCA 605

Stanford & Stanford (2012) 247 CLR 108

Whiton & Dagne [2019] FamCAFC 192

Zappacosta & Zappacosta [1976] FamCA 56

Division: Division 2 Family Law

Number of paragraphs: 268

Date of last submission: 5 July 2022

Date of hearing: 31 March 2021, 1 April 2021

Place: Sydney

Solicitor for the Applicant: Mr Brown of Browns the Family Lawyers

Counsel for the Respondent: Ms Kennedy

Solicitor for the Respondent: Windsor Law Group
ORDERS

SYC 3345 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MACKINNON

Applicant

AND:
MS TALBOT

Respondent

order made by:

JUDGE MORLEY

DATE OF ORDER:

16 Decmeber 2022

THE COURT ORDERS THAT:
1.Pursuant to section 79 of the Family Law Act 1975 (Cth):
(a)That by 4:00PM on 16 April 2023, the Respondent pay to the Applicant the sum of $159,742.
(b)In the event that the Respondent defaults in complying with order 1(a) herein, the Respondent shall forthwith sign all documents and instruments and do all things necessary to list for sale the property at B Street, Suburb C in the State of New South Wales (‘the B Street, Suburb C Property’) at a listing price recommended to her by a real estate agent and shall proceed to a sale of the B Street, Suburb C Property at a sale price recommended to her by a real estate agent and following…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MacKinnon & Talbot

Details

AGLC: MacKinnon & Talbot [2022] FedCFamC2F 1738
Case: [2022] FedCFamC2F 1738
Decision Date

CaseChat Overview and Summary

In the matter of MacKinnon & Talbot [2022] FedCFamC2F 1738, the Federal Circuit and Family Court of Australia addressed a final property settlement application following the breakdown of a de facto relationship. The Applicant, Mr MacKinnon, sought an order for the Respondent, Ms Talbot, to pay him half of the net property pool of the relationship. The Respondent opposed any property adjustment order. The court examined the contributions made by each party, both during and prior to the relationship, and considered the relevance of the Applicant's role in the parenting of the Respondent's son from a previous relationship. The court also considered the financial circumstances of each party at the time of the final hearing, as well as the Applicant's health and employment prospects. The court found that the Respondent had made a significantly greater financial contribution to the relationship and awarded the Applicant 17.5% of the net relationship pool, equating to a monetary payment of $159,742. The court ordered the Respondent to pay the Applicant within three months of the final order, with provisions for enforcement in the event of non-compliance, including a sale of the property at issue. The court determined that each party should retain their respective property and that the Respondent should remain solely responsible for the mortgage on the property.

Orders