Konicka & Winski

Case [2022] FedCFamC1F 705

Federal Circuit and Family Court of Australia

(DIVISION 1)

Konicka & Winski [2022] FedCFamC1F 705

File number(s): SYC 2007 of 2018
Judgment of: CHRISTIE J
Date of judgment: 16 September 2022
Catchwords:

FAMILY LAW – FINAL PARENTING – where the single expert was cross-examined and the parties settled by consent.

FAMILY LAW – FINAL PROPERTY – where the husband made substantial financial contributions – where the inclusion of notional property was controversial.

Legislation:

Family Law Act 1975 (Cth) ss 75, 79, Part VIII

Marriage Act 1961 (Cth) ss 88, 88C
Cases cited:

Bonnici & Bonnici [1991] FamCA 86

Chorn and Hopkins (2004) FLC 93-204

In the Marriage ofPellegrino (1997) FLC 92-789

Jacombe v Jacombe (1961) 105 CLR 355

Kowaliw & Kowaliw (1981) FLC 91-092

Lin and Nicholl [2016] FamCA 401

Pierce & Pierce (1999) FLC 92-844

Trevi & Trevi (2018) FLC 93-858
Division: Division 1 First Instance
Number of paragraphs: 88
Date of hearing: 29 August – 2 September 2022
Place: Sydney
Counsel for the Applicant: Ms Seric
Solicitor for the Applicant: De Saxe O’Neill Family Lawyers
Counsel for the Respondent: Mr Fermanis
Solicitor for the Respondent: Drayton Sher Lawyers
Counsel for the Independent Children's Lawyer: Ms Messner on 29 and 30 September 2022
Solicitor for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

SYC 2007 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS KONICKA

Applicant
AND:

MR WINSKI

Respondent

order made by:

CHRISTIE J

DATE OF ORDER:

16 September 2022

THE COURT ORDERS THAT:

1.Within 60 days of the date of this order Mr Winski (“the husband”) pay to Ms Konicka (“the wife”) or as she may direct the sum of $522,038.

2.Simultaneously with the husband’s compliance with Order 1, the wife provide to the husband a properly executed Withdrawal of Caveat Registered Number … and the requisite lodgement fee in relation to the Caveat registered over the title of B Street, Suburb C (“the Suburb C property”).

3.Within 14 days of the husband’s compliance with Order 1 the wife vacate the Suburb C property.

4.In the event that the husband fails to comply with Order 1, then within seven days of the husband’s non-compliance, the husband and wife (“the parties”) shall list for sale the Suburb C property on the following terms:

(a)The parties shall instruct such lawyer as the parties agree upon to have the conduct of the sale, or in the absence of agreement reached within seven days, the wife shall propose three names and the husband shall select one within 48 hours;

(b)The parties shall appoint such agent as the parties agree upon to have the conduct of the sale and in default of agreement as to agent, within seven days the wife shall propose three names and the husband shall select one within 48 hours (“the agent”);

(c)The property will be sold in a manner as agreed between the parties, and failing agreement, as recommended by the agent;

(d)Should the parties agree for the property to be sold…

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AGLC
Konicka & Winski [2022] FedCFamC1F 705
Case
[2022] FedCFamC1F 705
Decision Date

CaseChat Overview and Summary

Konicka and Winski was a property dispute heard by the Federal Circuit and Family Court of Australia. The wife sought a property adjustment following the end of her relationship with the husband, who initially disputed the validity of their marriage. The parties' marriage was questioned based on whether their ceremony in Country E was legally recognised in Australia. The court had to determine whether the marriage was valid under Australian law, the commencement date of their cohabitation, and the assets, liabilities, superannuation, and financial resources available for adjustment between the parties.

The court found that the marriage was valid based on the evidence of the ceremony, including the exchange of rings and vows and the husband's subsequent description of himself as married. The court did not find the husband's equivocal evidence sufficient to rebut the presumption of a valid marriage. The court also declined to determine the exact commencement date of their cohabitation, as it was not material to the assessment of matters under the Act. The court agreed on the assets, liabilities, and superannuation available for adjustment between the parties, as well as the wife's submission to include certain funds as notional property of the husband.

The court's reasoning was based on the principles set out in Jacombe v Jacombe and Lin and Nicholl. The court considered the source of funds and the wide discretion available in making property adjustment orders. The court found that the husband's inheritance during the marriage would ordinarily be considered a contribution on his behalf. The court also considered the transfer of funds from the husband to his brother and the sale of the Suburb G property.

The court ordered that the parties' marriage was valid and that there should be an adjustment to the contribution-based entitlements of the parties. The court made orders for the distribution of the assets, liabilities, superannuation, and financial resources between the parties, taking into account the wife's submission to include certain funds as notional property of the husband. The court also made orders for the payment of legal costs.

Orders

Orders of the court

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Background

Background to the litigation

That left the competing applications for property adjustment to be determined by the Federal Circuit and Family Court of Australia (Division 1) (“the Court”).Background Ms Konicka (“the wife”) says the parties commenced full time cohabitation in about early 2012, Mr Winski (“the husband”) says late 2012. The husband and wife participated in a wedding ceremony in 2012 in Country E. The husband had savings at the time of the ceremony and bought F Street, Suburb G (“the Suburb G property”) in late 2012. The husband and his brother inherited the following real property from the estate of their father in late 2015:(a)B Street, Suburb C (“the Suburb C property”) and(b)H Street, City J, Country E (“the Country E property”). The parties separated on 1 July 2017 but remained living under the same roof until the husband moved into his brother’s home in late 2018. Since that time the children have lived with the mother and spent time with the father. The father pays child support as assessed. The wife said she intends to obtain new accommodation in reasonable proximity to her family and work after the conclusion of these proceedings. The wife has a new partner but each has their own home.The law The Family Law Act 1975 (Cth) (“the Act”) confers power to adjust the property interests of parties to a marriage and parties to a de facto relationship. However, it is important to understand the source of power to make any orders sought. In this case the parties were, at least initially, at issue about whether their ceremony in Country E meant that they were validly married in Australia. Section 88 of the Marriage Act 1961 (Cth) (“the Marriage Act”) recognises foreign marriages in Australia. Section 88C of the Marriage Act states:(1) This Part applies to and in relation to every marriage solemnised, whether before or after the commencement of this Part, in a foreign country where:(a) under the local law, the marriage was, at the time when it was solemnised, recognised as valid; or(b) if the marriage was solemnised by or in the presence of a diplomatic or consular officer of another foreign country:(i) under the law of that other foreign country, the marriage was, at the time when it was solemnised, recognised as valid; and(ii) at the time when it was solemnised, the solemnisation of the marriage was not prohibited by the local law. This was a case in which ultimately both parties asked that I find that they were validly married notwithstanding the husband’s initial equivocal evidence. The principles which apply are set out in Jacombe v Jacombe (1961) 105 CLR 355 and referred to in Lin and Nicholl [2016] FamCA 401. In approaching the competing applications for property adjustment it is useful to begin by finding what assets, liabilities, superannuation and financial resources the parties or either of them have at the time of hearing. In some cases, such as this case, one or other of the parties will ask the Court to have regard to assets that no longer exist either because the funds have been spent, the assets transferred, legal fees paid or there is no proper explanation for the absence of funds which it is agreed existed at a point in time.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In a similar vein the husband in this case received an inheritance in the course of the parties’ marriage and as a matter of general principle this would ordinarily be considered a contribution on his behalf: Bonnici & Bonnici [1991] FamCA 86. Consideration The issues which arose for determination were:(a)Were the parties validly married?(b)When did the parties commence to reside together?(c)What assets, liabilities, superannuation and financial resources did the parties have at the beginning of their relationship?(d)How should the transfer of funds from the husband to his brother during the relationship be characterised?(e)Were there surplus funds from the sale of the Suburb G property and if so what happened to them?(f)Is the wife cohabiting with another person?(g)Should there be an adjustment to the contribution based entitlements of the parties? I find that the parties had a wedding ceremony conducted by a priest. The ceremony took place in a church and the parties exchanged rings and vows. The husband thereafter described himself as married. The presumption in favour of the parties being validly married being demonstrated on the basis of cogent evidence, I do not find that there was anything in the husband’s evidence which was capable of rebutting that presumption. Accordingly, I will treat the application for property adjustment as an application invoking the provisions of Part VIII of the Act. The parties were at issue about the commencement of their cohabitation. The husband said that the parties started living together around late 2012. The wife said they started to live together on a full-time basis in early 2012. Accordingly the parties are only at issue about a period of approximately nine months. During that nine months, the parties were married in Country E in 2012. I decline to make a finding about the dispute in circumstances where it is not material to the assessment of matters under the Act. The husband’s net asset position was similar at all relevant points in 2012. Before I turn to consider the parties’ respective contributions it is appropriate to make a determination about the assets, liabilities, financial resources and superannuation available for adjustment as between the parties at the time of trial. The parties reached agreement about the identity and value of the assets, liabilities and superannuation available for adjustment between them (as set out in exhibit D): In addition, the wife submitted that the Court would either include as notional property of the husband (or otherwise make an adjustment to take into account): (a)K Company shares sold and applied to the husband’s legal fees - $10,799;(b)Proceeds from the sale of the Suburb G property not accounted for on settlement - $194,726; and(c)Monies paid by the husband to his brother (other than to acquire interest in the Suburb C & Country E properties) - $196,714. The husband sold the K Company (by then L Company) shares he had acquired from his father’s estate in mid-2018 and received net $10,680.04. He applied those funds to payment of his lawyers. The husband’s counsel said, and I accept, that having regard to the source of those funds – inherited from the estate of the husband’s father - it was open to the Court not to include them as notional property having regard to the wide discretion and the principles which emerge from decisions such as Chorn and Trevi.