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FIRST INSTANCE JUDGMENTS
Property adjustment — Superannuation in payment — Period of service ending
nine years before commencement of cohabitation — Whether asset by asset
approach or global approach preferred — Isolation of superannuation in payment
in separate pool — Whether s 75(2) adjustment to reflect husband’s superannuation
benefit a “double count” after contributions assessment — Family Law Act 1975
s 79(4)(e); s 75(2) .
McKinnon v McKinnon [2005] FamCA 1245, (2005) FLC 93-242, 23 December 2005
Family Court of Australia before Coleman J
This was the re-exercise of the discretion of a Federal Magistrate by Coleman J following
the husband’s successful appeal against orders for property adjustment and spouse
maintenance.
At the appeal hearing, the Federal Magistrate was found to have erred in making
a s 75(2) adjustment by reason of a pension only superannuation interest of the
husband in the payment phase, having earlier included it at its valuation under the
Family Law (Superannuation) Regulations 2001 and, by the contribution finding,
awarded the wife a proportion of the interest. The parties began cohabiting in about
1997 and separated five years later. Neither party had an earning capacity due to their
ages and state of health.
Part 5
SIGNIFICANT JUDGMENTS
It was found that the pool of assets had a net worth of approximately $596,000 largely
contributed to by the husband. The husband also had entitlements in a pension
scheme (the DFRDB pension) referable to his service with the Royal Australian Air Force
from 1967 to 1988. The DFRDB pension was worth $248,774 and was considered as a
separate, second pool of property.
Appeal allowed.
1. As the DFRDB pension was in payment and could not be commuted, it was
preferable to adopt the asset by asset approach, and isolate the DFRDB pension in
its own pool (Coghlan v Coghlan (2005) FLC 93-220).
2. As the husband’s period of service giving rise to his entitlements under the DFRDB
pension came to an end some nine years before the parties began living together,
the husband alone had contributed to it.
3. Whilst ‘care needs to be exercised to ensure that superannuation interests are not
double counted’, as none of the DFRDB pension had been awarded to the wife by
way of contributions, it was not a ‘double count’ to make an allowance under s 75(2)
to reflect the very substantial benefit in real terms the husband received from it
unmatched by anything available to the wife.
4. The contributions by the wife to the asset pool of $596,000 was assessed at
15.5 per cent and she was awarded a 10 per cent adjustment for s 75(2) factors.
Family Court of Australia Annual Report 2005–2006 77