Winnel & Winnel
[2022] FedCFamC1F 82
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Winnel & Winnel [2022] FedCFamC1F 82
File number(s): ADC 4733 of 2019 Judgment of: MEAD J Date of judgment: 23 February 2022 Catchwords: FAMILY LAW – PROPERTY – Marriage of thirty-six years – Where the two main assets of the marriage available for distribution are the former matrimonial home and the parties’ superannuation entitlements – Where a clean financial break between the parties is desirable – Where both parties seek order that the husband retain the former matrimonial home – Where the husband was incarcerated at the time of trial – Husband aged 63 years – Where he has not engaged in the paid workforce since 2009 – Where he has no capacity to borrow funds to meet payment to the wife as determined by the Court to be required after consideration of contribution and s 75(2) factors – “Kennon” adjustment in the wife’s favour – Where a further adjustment is made in the Court’s consideration of the justice and equity overall of the proposed final order – Where the husband may no longer be represented – Where very precise orders are required to effect the final orders because of the husband’s expressed animosity towards the wife. Legislation: Family Law Act 1975 (Cth) ss 75(2), 75(2)(o), 79(4) Cases cited: Beklar & Beklar [2013] FamCA 327
Chorn & Hopkins (2004) FLC 93-204
Keating & Keating [2019] FamCAFC 46
Kennon & Kennon (1997) FLC 92-757
S & S [2003] FamCA 905
Stanford & Stanford (2012) FLC 93-518
Division: Division 1 First Instance Number of paragraphs: 232 Date of hearing: 31 January – 4 February 2022 Place: Adelaide Counsel for the Applicant: Mr Anderson Solicitor for the Applicant: Resolve Divorce Lawyers Counsel for the Respondent: Mr McQuade Solicitor for the Respondent: Daniel John Lawyers ORDERS
ADC 4733 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WINNEL
Applicant
AND: MR WINNEL
Respondent
ORDER MADE BY:
MEAD J
DATE OF ORDER:
23 FEBRUARY 2022
THE COURT ORDERS THAT:
1.That in full and final settlement of any claim that either party may have against the other of them for settlement and alteration of interest in property pursuant to Part VIII of the Family Law Act 1975 (Cth):
(a)the wife do transfer to the husband at his cost in all things all of her estate and interest both at law and in equity in the property situate at and known as D Street, Suburb E in the State of South Australia being the whole of the land comprised and described in Certificate of Title Volume … Folio … for his sole use and benefit absolutely;
(b)to effect the transfer referred to in paragraph 1(a) hereof:
(i)on or before 15 March 2022 the husband forward to the wife’s solicitors a Memorandum of Transfer in registerable form together with any other documents that shall be necessary to give effect to the said transfer;
(ii)the wife shall forthwith do all such things and sign all such documents as shall be necessary to enable the husband to lodge the said Memorandum of Transfer with Land Services SA;
(iii)on or before 25 March 2022 the wife’s solicitors shall return the said Memorandum of Transfer to the husband in registerable form together with any other required documentation duly executed by her by the wife;
(iv)by no later than 8 May 2022 the husband shall do all such things as may be necessary to lodge with Land Services SA the said Memorandum of Transfer together with any other documentation as shall be necessary to enable registration of the transfer from the joint names of the husband and the wife to the sole name of the husband;
(c)the husband shall forthwith have the sole authority to do all acts and things necessary to cause the joint accounts with G Bank (account number ending #...46) and Westpac bank (account number ending #...77) to be closed with the credit balances to be retained by the husband and this order shall serve as authority for the husband to give effect to the terms of this order on behalf of the wife;
(d)the funds retained by the husband pursuant to the terms of paragraph 1(c) hereof shall be utilised towards the discharge of the debts referred to in paragraph 1(e) hereof and pending such discharge the husband be restrained and an injunction is hereby granted restraining him from utilising the funds or any part thereof for any purpose other than in compliance with this order;
(e)on or before 15 March 2022 the husband pay and discharge all debts due and owing as of the date of payment to SA Water, H Local Council and Revenue SA to the exoneration of the wife and thereafter do indemnify her with respect to any accounts past, present or future from SA Water, H Local Council and Revenue SA arising from ownership of the property situate at and known as D Street, Suburb E;
(f)on or before 15 March 2022 the wife’s solicitors do forward to the husband a signed transfer of the wife’s interest in the AA Company shares currently held in the joint names of the husband and the wife to the husband and that the husband thereafter do all such things and sign all such documents as shall be necessary to give effect to the transfer of that interest;
(g)that henceforth the following shall vest in the wife free from all further claim or demand or right or entitlement of the husband, namely:
(i)the gold coins and silver ingot;
(ii)the proceeds of any bank accounts standing to her credit save as to those referred to in paragraph 1(c) hereof;
(iii)any motor vehicles in her possession;
(iv)all furniture, furnishings and effects in her possession;
(v)her clothing, jewellery and personal effects;
(vi)her superannuation entitlements as calculated in accordance with paragraph 2 hereof; and
(vii)all other assets currently in her possession, power or control;
(h)that henceforth the following shall vest in the husband free from all further claim or demand or right or entitlement of the wife, namely:
(i)the property situate at and known as D Street, Suburb E;
(ii)the proceeds of any bank accounts standing to his credit including the totality of the funds in the bank accounts referred to in paragraph 1(c) hereof subject to the terms of paragraph 1(d) hereof;
(iii)any motor vehicles in his possession;
(iv)all furniture, furnishings and effects in his possession;
(v)his clothing, jewellery and personal effects;
(vi)the AA Company shares referred to in paragraph 1(f) hereof; and
(vii)all other assets currently in his possession, power or control.
2.That in relation to the Winnel Superannuation Fund ABN … ("the SMSF"):
(a)in making these Orders the Court notes:
(i)the SMSF is a self-managed superannuation fund listed by the Australian Taxation Office on the Super Fund Lookup Website as a complying superannuation fund;
(ii)the SMSF was established under a Deed of Trust. The Rules governing the operation of the SMSF are contained in the Deed of Trust ("the Rules");
(iii)the husband and the wife are the only members of the SMSF;
(iv)the Trustees of the SMSF are the parties;
(v)the husband has a member account in the SMSF and in accordance with s 90XT(2) of the Family Law Act 1975 (Cth) as at 30 June 2021 the balance of that account was approximately $436,186.75;
(vi)the wife has a member account in the SMSF and in accordance with s 90XT(2) of the Family Law Act 1975 (Cth) as at 30 June 2021 the balance of that account was approximately $383,603.76;
(vii)that the requirements of procedural fairness in accordance with s 90XZD of the Family Law Act 1975 (Cth) have been observed on the basis that the parties are the directors of the SMSF;
Wife to transfer her entire interest in the Super fund to the Husband for an Instant (Splitting Order 1)
(b)that in accordance with section 90XT(1)(b) of the Family Law Act 1975 (Cth):
(i)the husband is entitled to be paid the specified percentage, being 100 PERCENT (100%) out of the Wife's SMSF interest; and
(ii)the wife's entitlement to the amount in her member account (and the entitlement of any other person to payments out of the Wife's interest) in the SMSF, is correspondingly reduced;
(c)that the husband and wife in their capacity as Trustees of the SMSF, shall do all such acts and things and have signed all such documents as may be necessary to:
(i)calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the Husband in the immediately preceding clause of this Order; and
(ii)pay the entitlement whenever the Trustees make a splittable payment out of the wife's interest in the SMSF;
(d)Splitting Order 1 operates from Operative Time 1;
Substantive Superannuation Split in favour of the Wife (Splitting Order 2)
(e)that in accordance with section 90XT(1)(b) of the Family Law Act 1975 (Cth):
(i)the wife is entitled to be paid a specified percentage being 100 PERCENT (100%) out of the husband's SMSF interest; and
(ii)the husband's entitlement to the amount in his member account (and the entitlement of any other person to payments out of the husband's interest) in the SMSF is correspondingly reduced;
(f)that the husband and wife in their capacity as Trustees of the SMSF shall do all such acts and things and have signed all such documents as may be necessary to:
(i)calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the wife in the immediately preceding clause of this Order; and
(ii)pay the entitlement whenever the Trustees make a splittable payment out of the husband's interest in the Super Fund;
(g)for the purposes of paragraph 2(e) herein the wife be at liberty to transfer all monies held in the accounts identified below to a superannuation fund of her choosing:
(i)G Bank Online Saver Account ending "…27"
(ii)G Bank Account ending "…24"
(iii)G Bank Account ending "…58"
(iv)G Bank Account ending "…59"
(v)G Bank Account ending "…60";
(h)for the purposes of paragraph 2(e) herein, paragraph 1 of the Orders made on 2 December 2019 in the Federal Circuit Court of Australia be discharged;
(i)Splitting Order 2 operates from Operative Time 2;
Operative time of the Order
(j)the operative times for Splitting Order 1 and Splitting Order 2 operate as follows:
(i)firstly, Operative Time 1 operates from the beginning of the day of the transfer of the transferable benefit; and
(ii)secondly, Operative Time 2 operates immediately following the operation of Operative Time 1.
Restraints pending compliance with Splitting Order 1 and Splitting Order 2
(k)pending the transfer of the transferable benefits from the wife to the husband and from the husband to the wife:
(i)each party is restrained from dealing with, charging, encumbering or disposing of any investment property of the SMSF other than in accordance with the terms of this Order;
(ii)for the purposes of paragraph 2 of this Order the wife is directed to forthwith produce a copy of this Order to the G Bank;
(iii)in the event any liabilities are incurred by the SMSF they are to be met from the SMSF's bank account; and
(iv)each party shall immediately revoke any binding death benefit nomination already made and each party be, and is hereby, restrained from:
A.making any binding death benefit nomination in favour of a child described in regulation 13 of the Family Law (Superannuation) Regulations 2001;
B.making any other nomination where the effect of such nomination would be to render any splittable payment not splittable; and
C.doing any such act or thing which would defeat, extinguish or reduce the entitlement of either party under this order.
The Winnel Superannuation Fund
(l)contemporaneously with the implementation of Splitting Order 1 and Splitting Order 2, the husband and wife will jointly do all things and sign all documents necessary to:
(i)instruct the accountant to prepare an updated balance sheet for the SMSF to determine the member balances for each of the husband and the wife, and to calculate the outstanding and anticipated liabilities, taxes and costs, if any, of the SMSF;
(ii)set aside any amount representing the outstanding and anticipated liabilities, taxes and costs, if any, of the SMSF; and
(iii)cause the wife's membership entitlement from the SMSF to be rolled out to her separate account, in another complying superannuation fund nominated by her;
(m)before the close of the meeting of the Trustees of the SMSF, the parties do all such acts and things and sign all such documents as may be necessary to:
(i)sign the Tax Returns and Financial Statements for the SMSF for any outstanding financial years;
(ii)instruct the agreed Tax Agent/Accountant to wind up the SMSF;
(iii)declare that the said Fund is a compliant superannuation fund as at the date of these Orders;
(n)each party is restrained and injunctions are hereby granted restraining each of them from:
(i)dealing with, charging, encumbering or disposing of any property of the SMSF other than in accordance with the terms of this Order; and
(ii)doing any such act or thing which would defeat, extinguish or reduce the entitlement of either party under this Order.
(o)each party shall do all acts, deeds and things and sign and execute all documents necessary to give full force and effect to paragraph 2 of this order PROVIDED THAT if either the husband or the wife shall refuse or neglect to execute a document necessary to give full force and effect to the said order within fourteen (14) days after the same shall have been tendered to him or her for the purpose of execution then and in such event a Judicial Registrar of the Federal Circuit and Family Court of Australia (Division 1) upon proof by affidavit of such refusal or neglect is hereby appointed to execute and if in his or her opinion it shall be necessary so to do to settle the same and to do all such other acts and things as shall be necessary to give full force and effect thereto and shall execute and do the same accordingly and the party in default shall pay the other party's costs as agreed or as taxed.
Ancillary Orders
3.That subject to the provisions of this order each party do release the other party from any liability for any claim that either one may have against the other in respect of any property either now or hereafter owned by either of them.
4.Each party shall keep the other indemnified in relation to all actions, claims, proceedings, and demands howsoever arising in relation to any debts and liabilities incurred in their respective sole names.
5.That hereafter each party shall discharge without calling upon the other to contribute thereto any debts contracted for or by them including but not limited to any personal debts entered into by them.
6.That further to the terms of paragraph 5 hereof the husband specifically indemnify the wife and forever keep her indemnified with respect to the Charging Order identifying the husband as the judgment debtor to the State of South Australia signed 9 June 2021 and registered over the interest of the husband in the property referred to in paragraph 1(a) hereof together with any interest accruing with respect thereto.
7.Henceforth each party is restrained and an injunction is hereby granted restraining the parties and each of them from pledging the credit of the other.
8.Each party shall do all acts, deeds and things and sign and execute all documents necessary to give full force and effect to this order generally PROVIDED THAT if either the husband or the wife shall refuse or neglect to execute a document necessary to give full force and effect to the said order within fourteen (14) days after the same shall have been tendered to him or her for the purpose of execution then and in such event a Judicial Registrar of the Federal Circuit and Family Court of Australia (Division 1) upon proof by affidavit of such refusal or neglect is hereby appointed to execute and if in his or her opinion it shall be necessary so to do to settle the same and to do all such other acts and things as shall be necessary to give full force and effect thereto and shall execute and do the same accordingly and the party in default shall pay the other party's costs as agreed or as taxed.
9.That all extant applications be otherwise dismissed.
10.Liberty to either party to apply as to consequential orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Winnel & Winnel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
Mr and Ms Winnel are unable to agree on a division of their property.
Both parties seek orders for settlement of property.
The major issues in dispute between the parties related to:
·the question of what, if any, liability should be apportioned to the wife in respect of a Statutory Charge in the sum of approximately $107,000 registered over the husband’s interest in the former matrimonial home;
·whether an adjustment should be made in favour of the wife on account of her contribution being made more arduous by the husband’s alleged violence, not only towards her but also to the parties’ children during the period of the marriage in accordance with what are often referred to as the “Kennon” principles;[1]
·whether any further contribution adjustment should be made in favour of the wife on account of her post-separation contribution made by way of her exclusive care of the parties’ child Z until she reached the age of 18 years; and
·whether any adjustment should be made in favour of the husband on account of the wife’s superior earning capacity.
[1] Kennon & Kennon (1997) FLC 92-757 (“Kennon”).
Both parties proposed that the husband retain the former matrimonial home.
The orders sought by each party differed primarily in terms of how much of the husband’s superannuation entitlement should either be paid to the wife by him or rolled over into an account of her choosing.
Background
The wife, Ms Winnel, was born in 1961 and is aged 60 years.
The husband, Mr Winnel, was born in 1959 and is aged 63 years.
The parties had four children, the youngest of whom, Z, is aged 20 years.
At the time of trial the wife was employed as a health professional at J Company working four days per week. She had been employed by J Company for a period of some thirty-four years.
In the financial statement filed by the wife on 24 November 2021 she deposed to average gross weekly income of $1,532. This was in accordance with the information contained in Exhibit “H1” being her payslip for the fortnight ending 18 January 2022.
At the time of trial the husband was in custody at K Prison. He had been in custody since approximately August 2020, including for a short period of home detention. He is on remand in respect of various alleged offences as set out in paragraph 91 of his trial affidavit filed 28 January 2022.
It was the husband’s evidence that the only income he receives whilst incarcerated is an allowance in the sum of $12.80 per week. This is apparently reduced by way of deductions for the cost of a television service, as well as telephone calls.
He has pleaded not guilty to the forty-two counts comprising breaching Intervention Orders, breaches of Bail, Stalking and Aggravated Stalking.
Notwithstanding evidence given by him as to a “plea deal” as set out in paragraph 99 of his said trial affidavit, it was his evidence at trial that he was not prepared to accept such a proposal on the part of the prosecution and anticipated spending at least the next three to four years incarcerated.
Notwithstanding that evidence, at the close of his case the husband, who was appearing by video link from K Prison, announced to the Court that he would be released from prison in February 2022. The comment did not form part of the husband’s sworn evidence but was heard by the Court as well as the wife and both parties’ counsel.
Mr and Ms Winnel were married in 1983 and separated in March 2019, a period of almost thirty-six years.
Their eldest child W was born in 1988, their second child X in 1989, their third child Y in 1991 and Z, the parties’ youngest child was born in 2002.
At the time the parties married the wife was working as a health professional at the B Hospital and the husband was working fulltime at DD Company.
Some five months prior to marriage the parties purchased a house property in respect of which, on the husband’s unchallenged evidence, they had paid a deposit of $20,000. Neither party had any other assets of significance at the commencement of cohabitation.
Save as to periods of maternity leave the wife worked throughout the period of the marriage and continued to work as at the date of trial.
In the early part of the marriage the husband undertook professional skills training during which he continued to work in casual roles. In approximately 2000 he started the business BB Pty Ltd. He worked in that business until approximately April 2005. He also employed other professionals, and continued to do so until 2009. As at the time of trial the husband had been out of the paid workforce since 2009, save for some limited casual work at times.
At the time the parties separated the major assets of the marriage consisted of the former matrimonial home and the assets owned by the parties’ self-managed superannuation fund.
Documents relied on
The wife relied on:
(a)her Further Amended Initiating Application filed 7 July 2021;
(b)her affidavit filed 30 April 2021;
(c)her affidavit filed 7 July 2021; and
(d)her financial statement filed 24 November 2021.
The husband relied on:
(a)his Amended Response to Initiating Application filed 28 January 2022;
(b)his trial affidavit filed 28 January 2022; and
(c)his financial statement filed 28 January 2022.
Orders sought
In closing submissions it was the wife’s position that the husband should retain:
·the former matrimonial home at Suburb E subject to the Statutory Charge;
·the furniture and effects at that property;
·the proceeds of any bank accounts standing to his credit;
·his CC Company shares;
·his Motor Vehicle 1;
·the camper trailer; and
·all other assets currently in his possession or control.
She further proposed that she retain:
·the totality of the assets held by the parties in their self-managed superannuation fund;
·the gold coins and silver ingot;
·the proceeds of any bank accounts standing to her credit;
·the Motor Vehicle 2;
·the Motor Vehicle 3 on trust for the parties’ daughter Z;
·the furniture and effects in her possession;
·her clothing, jewellery and personal effects; and
·all other assets currently in her possession, power or control.
The wife’s counsel tendered to the Court three different draft orders for the Court to consider, providing different pathways to give effect to the orders sought by the wife.[2] The first two provided different pathways to effect the husband retaining the former matrimonial home subject to the Statutory Charge and the wife retaining all of the superannuation assets. The third draft provided a pathway to effect a sale of the former matrimonial home, a discharge of the Statutory Charge and a division of the net proceeds of sale as well as an equal division of the parties’ superannuation assets.
[2] Exhibit “W6”.
In closing submissions the husband’s counsel proposed that the husband retain the former matrimonial home subject to the Statutory Charge and pay to the wife the sum of $207,217.19 from his superannuation entitlements which, being unemployed and having attained the age of 60 years, he is entitled to withdraw tax free.
The evidence with respect to the taxation implications of the husband withdrawing funds from his superannuation entitlements in the parties’ self-managed superannuation fund and the taxation consequences in the event the Court adjusted the value of the member balances held by each party was agreed by the parties and contained in Exhibit “W8” being an email from EE Company to Mark Anderson (the wife’s counsel) sent Thursday 3 February 2022 at 1.18 pm.
Relevant Law
I am satisfied in the circumstances of this case that it is just and equitable to make an order adjusting the property interests of the parties, including their interests in superannuation.[3] Both parties come to the Court seeking orders for property settlement.
[3] Stanford & Stanford (2012) FLC 93-518.
In order to assess the parties’ competing proposals the Court must:
(a)determine the asset pool available for distribution;
(b)consider and make findings as to the parties’ respective contributions to that pool in accordance with the provisions of s 79(4) of the Family Law Act 1975 (Cth) (‘the Act’);
(c)consider and make any necessary adjustments to those findings taking into account the relevant matters under the provisions of s 75(2) of the Act; and
(d)having considered these matters and in arriving at a determination as to the distribution of the parties’ assets, the Court must be satisfied that such distribution effects justice and equity as between the parties.
Asset Pool
The parties were agreed as to the value of the following assets:
Asset
Agreed Value
Former matrimonial home at D Street, Suburb E (joint)
$666,000
AA Company shares (joint)
$3,248
Gold coins/Silver ingot (joint)
$3,825
FF Bank account number #...77 (joint)
$2,529
G Bank account number #...46 (joint)
$604
Wife’s household furniture and effects
$8,780
Husband’s household furniture and personal effects
$4,845
There was some level of dispute about the value of the husband’s Motor Vehicle 1 but I note the only evidence regarding that vehicle was contained in the valuation of Mr L dated 6 May 2020 wherein a value of $500 was ascribed to that vehicle.
It was submitted by the husband’s counsel that the valuation was “fairly old” and that in the ordinary course the value of the vehicle would be reduced. I find however in the absence of any evidence to the contrary that $500 should remain ascribed to the value of that vehicle, which is of course included in Mr L’s valuation of the husband’s furniture and effects and should not be described as a separate line item.
They were agreed no value should be ascribed to a Motor Vehicle 2 and a Motor Vehicle 3 in the wife’s possession. The parties regard the Motor Vehicle 3 as belonging to Z.
The parties were not in agreement as to whether or not the balance of three bank accounts in the wife’s name and one bank account in the husband’s name should be included in the list of assets.
It was the husband’s position that an amount of $2,300 should be ascribed to the value of the wife’s G Bank account #...66, $122 to her G Bank account #...95 and $103 ascribed to her Commonwealth Bank account #...83. He further agreed that a value of $917 should be ascribed to his Westpac Bank account #...34.
These figures were included in the Schedule of Assets contained on page 5 of the husband’s Case Outline tendered to the Court by the husband’s counsel.
It was the wife’s position that the funds described therein as being held in her three accounts no longer existed and in her financial statement filed 24 November 2021 she deposed to the accounts ending in #...66, #...95 and #...83 having NIL balances.
I am satisfied those amounts should not be included in the asset pool. There was no evidence adduced by the husband as to the date the accounts held those balances and overall the value of the funds in dispute is of little significance.
There was no evidence as to an account ending #...34 in the name of the husband having a balance of $917 and I likewise consider that should not be included in the asset pool.
It was common ground that at the time of separation the parties held approximately $110,000 in two jointly held G Bank accounts from which the wife withdrew the sum of $55,000.
There was no dispute that the husband retained the balance, and that as at trial he had cash savings in the sum of $12,000 remaining.
The wife conceded in cross-examination that of the $55,000 she withdrew, $27,000 had been expended on legal fees.
It was submitted on the husband’s behalf that such sum should be “added back” to the asset pool in circumstances where the husband’s cash savings in the sum of $12,000 were being brought to account.
Although it was agreed that as at the date of trial the husband retained savings of $12,000 from his share of the joint savings at separation, he was cross-examined as to the expenditure of $48,800 he withdrew from various accounts in the period 1 April 2020 to 6 July 2020.[4]
[4] Wife’s affidavit filed 7 July 2021 – paragraph 37.
The husband’s evidence in cross-examination was vague as to the expenditure of those funds. He recalled sending $2,000 in cash in an envelope to a friend, paying for car registration and house downlights and buying significant amounts of food to go into a new freezer he purchased when the COVID-19 pandemic began. He also said a “fair bit” was donated to the M Group and that he had spent some $3,000 to $4,000 on expenses whilst in prison.
In the normal course of events it may well be that $27,000 of the $55,000 retained by the wife, having been utilised for legal fees, should be “added back” to the asset pool in circumstances where they “existed at separation and are such that both parties can be seen as having an interest in them (on account, of contributions)”.[5] The same may apply to the husband’s savings.
[5] Beklar & Beklar [2013] FamCA 327 at [141].
Nevertheless, “the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial judge, in determining how to exercise that discretion, regard should be had to the source of the funds.”[6]
[6] Chorn & Hopkins (2004) FLC 93-204 at pp 79,322-3.
The source of the funds were the parties’ joint savings existing at the time of separation.
The husband’s counsel did not dispute that the husband had access to an approximately equal amount of the parties’ savings following upon separation.
This is a matter where overall the concept of equality of contribution is conceded by both parties.
They are of course at odds with respect to whether or not there should be an adjustment in favour of the wife on account of the “Kennon” principles and her post-separation contribution, as well as the question of adjustments in favour of the husband arising from his liability for the Charging Order to which I shall refer later and the wife’s greater earning capacity.
Nevertheless, the parties’ savings at separation were divided almost equally and both parties have been free to dispose of those funds in whatever manner they see fit over the almost three years since separation. I find that justice and equity is best served by omitting both amounts from the pool of assets available for distribution and to make any contribution or s 75(2) factor adjustments on the currently available pool.
The parties were in dispute as to the value of a camper trailer. The camper trailer was in the possession of the husband at the former matrimonial home when Mr L conducted his valuation, but not included in the valuation.
By letter to the wife’s solicitor dated 18 July 2020,[7] Mr L confirmed that he had not valued the trailer but had conducted a basic visual inspection of the outside and put questions to the husband as to the interior and overall condition should a valuation be required at a later date.
[7] Wife’s Book of Documents – page 39.
He reported to Ms N that “based upon my limited observation I would estimate a value range of between $1,000 and $3,000 for the camper”.
The wife proposed the camper trailer be included at a value of $2,000. The husband’s evidence in cross-examination was that he valued the camper trailer at $500 because it had been damaged at about the time of separation.
I am satisfied that an amount of $500 should be included in the asset pool as the value of the camper trailer in circumstances where it was not formally inspected and valued. The husband concedes that value. I find the only other option would be to exclude it from the list of assets which would ignore the fact of the husband’s concession as to value.
I was not satisfied on the evidence that I should accede to the wife’s position and include the sum of $450 in the asset list and attribute it to a painting allegedly in the possession of the husband in respect of which there was no formal valuation and no concession by the husband.
For those reasons I find that the list of non-superannuation assets is as follows:
Asset
Value
Former matrimonial home at D Street, Suburb E (joint)
$666,000
AA Company shares (joint)
$3,248
Gold coins/Silver ingot (joint)
$3,825
FF Bank account number #...77 (joint)
$2,529
G Bank account number #...46 (joint)
$604
Wife’s household furniture and effects
$8,780
Husband’s household furniture and personal effects
$4,845
Camper trailer (husband)
$500
TOTAL:
$690,331
Superannuation
The value of the husband’s member balance in the parties’ self-managed superannuation fund was $436,186.75 as at 30 June 2021 and that of the wife $383,603.76.[8] The Court was advised by counsel at trial that the parties were agreed that as at December 2021 the value of their combined member balances in the Winnel Superannuation Fund was $820,296.32.
[8] Exhibit “W5”.
I further find that it is appropriate for the purposes of the calculations in this matter to use that figure noting that a small amount of interest would have accrued between that date and the date of trial. The value of the fund had only increased by $506 between 30 June 2021 and December 2021.
Accordingly I find the total gross asset pool to be valued at $1,510,627 (rounded).
Liabilities
With respect to liabilities, I am satisfied that for the same reasons that I did not include the monies retained by the parties at separation in circumstances where they had been of almost equal value and the parties had unfettered discretion to expend them as they saw fit, I do not intend to include as a liability of the marriage the amount outstanding on the wife’s credit card as at 24 November 2021 in the sum of $1,493.
The only other significant issue in respect of which the parties have a differing approach is how the Court should treat the amount outstanding in respect of the Statutory Charge over the husband’s interest in the former matrimonial home in the sum of approximately $107,000.
The Charging Order was made in the Supreme Court of South Australia in 2021. It arose from costs awarded against the husband following upon his unsuccessful action against the State of South Australia for malicious procedure and false imprisonment relating to his imprisonment at the P Correctional Centre for five days in April 2009.
The costs were fixed in the sum of $97,000 but have subsequently incurred interest such that it was common ground that as at the date of trial the amount owing has increased to approximately $107,000. The debt has apparently been increasing in an amount of approximately $485 per month since judgment.
It was submitted by the husband’s counsel that the appropriate way to take the husband’s liability for that Charge into account, which as Mr McQuade said, will at some stage have to be paid by the husband, was pursuant to the provisions of s 75(2)(o) of the Act, rather than determining the proportionality of responsibility for the debt as part of the process of determining the asset pool and/or contribution.
It was the submission of counsel for the wife that she was not cross-examined about the issue of her level of responsibility or liability for the debt, but that the Court should take the matter into account in what he described as the “adjustment phase”.
I find that it is appropriate to deal with that issue when considering the provisions of s 75(2) of the Act.
For those reasons I find that for the purposes of these proceedings the net asset pool has a value of $1,510,627.
Contributions
It was the position of the wife that a consideration of the contributions made by each party during the period of their long marriage may result in the Court concluding the parties’ contributions should be assessed as equal.
It was submitted however on her behalf that she made a significant post‑separation contribution by way of her sole responsibility for the physical and financial care of the parties’ child Z and further, that her contribution was made “significantly more arduous than it ought to have been” as a result of a course of violent conduct towards her by the husband during the course of their marriage,[9] including the adverse impact upon her of witnessing the husband’s violence towards the parties’ children and in particular towards W and X.
[9] Kennon at p 84,294.
In cross‑examination the husband denied that he was ever violent or abusive to the wife or any of the children, but conceded that on occasion he had harshly disciplined the children.
It was submitted by counsel on his behalf that the Court should find the parties’ contributions to be equal.
At the time the parties married in 1983 the wife was working on a fulltime basis as a health professional at the B Hospital and the husband was employed fulltime at DD Company.
Shortly prior to the parties’ marriage they purchased a house subject to mortgage, which mortgage was repaid in full prior to the sale of the property in 1990.
In June 1990 the parties purchased the former matrimonial home at D Street, Suburb E for approximately $210,000 using the net proceeds of sale from the former property of approximately $125,000 and obtaining the rest of the purchase price by way of mortgage. The parties discharged the mortgage in or about 1997.
The wife worked on a fulltime basis until the parties’ first child W was born, and took maternity leave after each of the children’s births. She worked on a part-time basis following upon the birth of each of the children for periods ranging between half a day per week and four days per week. At trial she had been working four days per week consistently since July 2017.
Between 1986 and 1995 the husband was employed with Q Company. In 1996 he commenced his studies at the GG University, which he completed in 1999. During his studies he continued to work for various employers including HH Company, R Company and S Company.
In or about 2000 the husband established a business called “BB Pty Ltd”. As well as operating the business, the husband worked in it until in or about 2005. He continued operating the business until approximately January 2009.
The husband thereafter ceased employment outside of the home and did not return to any form of employment for the remainder of the marriage other than some brief casual work.
It was common ground that from 2009 the wife’s income provided for the financial support of the family, and that the parties and their children enjoyed a comfortable standard of living that involved regular holidays.
It was the wife’s evidence that during the course of the marriage she received various monetary gifts from her mother, including:
·$10,500 gifted in September 2009 and utilised to fund kitchen renovations;
·$5,000 gifted in September 2011 and used for a holiday for the wife and the parties’ child Z;
·$10,000 gifted in October 2017 and utilised to pay for holidays for the husband, the wife and Z; and
·$10,000 gifted in October 2018 and utilised towards the purchase and installation of solar panels, new carpet and a new fridge.
In cross-examination the husband said that he had never seen any evidence of gifts of money from the wife’s mother. He conceded a new kitchen had been installed, and that in 2018 solar panels had been installed and new carpet laid. He was unable to remember whether the parties had purchased a new fridge.
It was the husband’s position that the wife had been secretive about the parties’ finances during the marriage. I was not persuaded that at trial anything turned on that allegation.
The submission of the husband’s counsel that the parties’ contributions during the period of the marriage should be assessed as equal was not challenged by the wife’s counsel.
With respect to the “Kennon” claim, it was the wife’s case that throughout the entirety of the parties’ marriage there were many instances of family violence “whereby the husband inflicted physical and verbal abuse towards me and the children”.[10] The wife’s evidence in that regard was set out in paragraphs 20 to 27 of her trial affidavit filed 30 April 2021.
[10] Wife’s affidavit filed 30 April 2021 – paragraph 20.
The wife further alleged that the husband continued his abusive conduct towards her post‑separation up to the time of trial. Her evidence in that regard was contained in paragraphs 28 to 31 of that same affidavit.
In the wife’s affidavit filed 7 July 2021 she alleged in paragraphs 34 to 35.8 further instances of abusive behaviour exhibited towards her by the husband as contained in correspondence addressed to both her and her solicitors between March 2021 and June 2021.
The wife’s evidence about issues of violence was well-known to the husband, being contained in her affidavits filed on each of 30 April 2021 and 7 July 2021.
In circumstances where the husband’s evidence-in-chief in his trial affidavit and in cross‑examination effectively amounted to a blanket denial of the wife’s allegations, the issue of the credibility of the parties assumes importance.
I find that the husband was less than frank in his evidence as to his knowledge of the incidents deposed to by the wife.
During the parties’ marriage there were three periods when the husband lived apart from the wife and the children, prior to the final separation in March 2019.
It was the wife’s evidence that following upon reports made by her to police resulting in her obtaining an Intervention Order in 2004, Families SA became involved with the family and the children became subject to child protection proceedings in the Youth Court. She further alleged that Families SA required the husband to remove himself from the home.
In cross-examination the wife acknowledged that an order had been made in the Youth Court for a period of twenty-eight days in 2005 directing the husband to refrain from residing with the children during that period and to only have access to them in accordance with their wishes.
The wife agreed that the husband complied with the order and that during the period he was away from the family home he lived with a mutual friend “a couple of kilometres” away. When it was put to her that she had seen him regularly during that time she recalled that she saw him on occasions.
The wife confirmed in cross-examination that she had reported incidents of abuse by the husband towards the parties’ children W and X. She said that the parties resumed cohabitation in approximately July 2005.
It was the wife’s evidence that the husband had slapped her in the face when he was angry about financial issues relating to the child X.
It was her further evidence that W had told her that his father had damaged some of his sporting trophies, had driven a car at W and thrown a TV at him, and that teachers at W’s school had made reports to Families SA regarding cuts and bruises on W.
It was the wife’s evidence contained in paragraph 27 of her affidavit filed 30 April 2021 that the husband’s abuse left her “feeling exhausted, helpless and with despair that I felt unable to protect the children.”
She deposed to having sought some counselling on a sporadic basis to assist her to manage and deal with the husband’s behaviour but also to gaining support from her church community and friends.
In cross-examination she conceded that in her trial affidavit she had only referred to two incidents when the husband’s conduct towards her had prevented her from attending at work. She said it had occurred on other occasions but she had only specifically deposed to the two incidents.
In paragraph 60 of the husband’s trial affidavit he deposed to strenuously and vehemently denying all of the wife’s allegations that he perpetrated acts of family violence upon her and the children during their marital relationship.
In paragraph 61 he deposed to “only ever one occasion” when he slapped the wife with an open hand and that he otherwise never physically struck her, pushed her, punched her, threatened her, intimidated her or stalked her during the relationship. He deposed in paragraph 62 to rarely arguing during the marriage.
He conceded in paragraph 63 to having sent numerous emails, letters and SMS messages to the wife between March and October 2019 expressing his anger to her after “she had abused me, gossiped about me, denigrated me to others, lied to others about me, acted deceitfully, stalked me and belittled me.”
He deposed in paragraph 62 with regretting some aspects of his parenting, in particular being too strong in discipline he applied towards the parties’ children W, X and Y, and further to feeling remorse for how he treated Z during the last year she lived with her parents in the matrimonial home.
In that same paragraph however he said “I strenuously deny the applicant’s allegations that I inflicted acts of family violence upon the children or that I was verbally abusive towards them in the manner that she has described.” He further deposed to the wife supporting his use of corporal punishment to discipline the children.
He deposed in paragraphs 65 to 85 of his affidavit filed 28 January 2022 to:
·the wife suffering from a number of ill-effects from menopause such that it effected changes in her personality;
·harbouring a religious belief to the effect that she can “wilfully lie, steal, cheat, provide falsified evidence to this Court without consequence or accountability”;
·falsified evidenced produced to the Court regarding allegations of family violence “for her own personal financial gain”;
·made false allegations to Centrelink in approximately March 2019 in relation to family violence;
·subjected him to constant emotional and psychological abuse leading to him attempting suicide on two occasions;
·being forced to sleep outside the back of the house on concrete for about a month following upon returning to live at the former matrimonial home after the separation between approximately October 2011 and April 2012;
·forced him to sleep in a tent and car at times;
·forced him to drink from a garden tap and on occasions having to walk five kilometres to purchase food for himself;
·abused the court process for her own benefit and to make him suffer;
·stalked him, stole his passwords and accessed his social media and email accounts to stalk him;
·recorded conversations between them without his knowledge;
·encouraged him to attempt suicide, belittled him, ostracised and abused him;
·refused to allow him to be covered by the family’s private health insurance cover and ambulance cover; and
·refused to allow him access to the parties’ bank statements including to the self‑managed superannuation fund.
The allegations contained in paragraphs 59 to 82 as well as 84 and 85 of his trial affidavit were vague and lacked any reasonable level of specificity and/or mainly comprised the opinions and beliefs of the husband.
In cross-examination the husband denied that he had hit the wife, and said he was upset that she was hiding the fact of X spending “thousands of dollars” on gaming equipment and conspiring with others to hide that information from him. He denied that he had become angry with her and denied he had used his left hand to hit her on the face. He further denied he had caused a cut to her mouth and her to experience pain in her jaw.
He said that he had no idea an Intervention Order had been put in place in 2004 and when he became aware of it, thought that it had something to do with the investigations in the Youth Court, and no idea that it had anything to do with the wife. It was his evidence that he was never charged by the police or questioned about the allegations.
He further denied that he was aware in late 2004 that the wife had made an allegation to police that he had assaulted the parties’ child Y on two occasions in August 2004. He denied that he had “run at him and kicked and punched him in the head” after Y had left his bike on the path.
He agreed that in October 2003 the parties’ child X had “wagged” school and he had seen him in McDonalds in the morning, but denied he had an altercation with X at the creek after seeing him at McDonalds.
He agreed he had thrown a TV from the home near a nearby creek which had no water in it but said he had then picked the TV up and taken it home undamaged. In answer to a question from the Court, he was unable to recall what room he took the TV from in the first place, but said it was not the main TV. He said he did not know why he took the TV to throw it in the creek and said it belonged to him.
He denied arguing with any of the children whilst he was down by the creek and denied driving his car at any of the children. He further denied an allegation that in about mid-2004 he had a verbal argument with W, that he had run at W, thrown him on the bed and tried to hit him.
The husband agreed that he had not resided at the Suburb E home for a period of months from late 2004 to approximately April 2005.
When asked if he was aware that he had not been permitted to reside at the Suburb E property during that time, he replied that he had no idea of the exact details, that he had lived at a friend’s house and he did not recall attending upon Dr O, Psychiatrist, for assessment.
When asked if he had been referred to a group “JJ Program” by South Australia Police, he said no orders had been made and he could not remember attending. When asked if he had gone on one occasion to any course in late 2004, he said he had decided to attend several so as to be a better parent. He said that decision had been at his own volition and he had attended three or four courses.
He agreed that he had attended upon Mr T. He denied that he had been directed to do so by the psychiatrist Dr O and was unable to recollect how often he had seen Mr T. He said he could recall attending upon F Psychologists and the M Group.
Mr Winnel denied that he had attended upon Mr T to assist him to control his anger and when asked why he had seen Mr T he said it was not with respect to his anger as far as he recalled, but rather to improve his parenting. He denied that he rose to anger quickly.
When asked whether he had disciplined the children inappropriately, he said he had recognised that he was repeating behaviour that his father had exhibited to him such as chastising and smacking him, and that he should not discipline his children in that same way.
He said he had attended upon Dr T and courses to simply improve himself in circumstances where there had been a change of perceptions in society about appropriate parental discipline.
When it was put to him that it was not an issue of the times changing but rather Families SA being involved such that he knew he had to persuade the authorities that he was not a risk to the children, he denied such proposition. He said he was unable to recall being monitored for eighteen months by Families SA.
Mr Winnel agreed that he had been arrested in late 2008 after a dispute involving he, W and X, but he denied assaulting W and said the allegations were withdrawn.
He agreed he had been placed on Bail and had subsequently been arrested for breaching his Bail conditions in early 2009. When it was put to him that one of the conditions of Bail was that he had no communication with the wife, he said he did not know that was a condition. He agreed he was in the P Correctional Centre in 2009 arising from his breach of Bail.
When asked if he conceded that the parties had again separated in approximately October 2011 he said he was unable to remember the exact date but the parties saw each other as though they were still living together.
He denied that on a Friday night prior to the separation in 2011 he had awoken the wife from her sleep in the middle of the night and threatened to stab her in the chest with a knife. He further denied that he told the wife that if she took Z away he would take Z away from her. He said the parties’ son W had said that to the wife.
Mr Winnel was unable to recall whether the wife had sent Z to stay with a friend in about October 2011 and said he was unable to recall a further argument a couple of nights prior to the parties’ separation in approximately October 2011 when during a disagreement with the wife in the middle of the night he had removed her telephone and car keys.
He said he was unable to recall the wife ringing the police and the police arriving and arresting him. When asked whether he recalled any time that the police came to the house to arrest him he said he did but it was not in the early hours of the morning.
He agreed he had been taken to the B Hospital for assessment but denied he had been detained at the hospital for seven days. He agreed he had been advised he would be detained by a medical officer, but said he was then seen by a psychiatrist other than Dr O and told that he could go home.
When it was put to the husband that he seemed to want the Court to understand that in 2011 he had been arrested, taken to hospital, and assessed all because of a misunderstanding arising from the wife’s report to the police about the appropriateness of the medication he was taking, he replied “yes”.
He said he was unable to recollect whether by the time he got back to the matrimonial home the wife and Z had left.
The husband was further cross-examined as to the allegations contained in paragraph 26 of the wife’s affidavit filed 30 April 2021 with respect to abusing the parties’ child Z. When it was put to him that he had woken Z in the middle of the night in September 2016, thrown her school bag at her, pushed her bookcase over causing its contents to spill over the floor and taken her iPhone and iPod as well as calling her a lazy failure, Mr Winnel said the incident had simply not occurred and denied it in its entirety.
He further denied that in June 2018 he had yelled at Z because she had not cleaned the kitty litter tray and told her to “fuck off and never come home”. He agreed that she had gone to stay with a friend for about a week but said it was nothing to do with a kitty litter tray, and that he could not recollect why she had gone to stay with a friend. He was also unable to recollect using the words “fuck off and never come home” to Z, but when asked if he had been upset at Z, said he had been because her room was “disgusting” and “filthy”. He denied he had told Z to move out of the home in March 2019.
When it was put to him that the parties had separated for a period of approximately six months from late 2008 to mid-2009, he said in his recollection it was for about four months. He agreed that W and X had moved out of the family home in approximately mid-2009. When asked if that was after he and the wife had reconciled he said he did not know because he was not living there. He agreed he had had no contact with W and X since approximately late 2008.
With respect to the separation between the parties commencing in approximately October 2011, the husband agreed in cross-examination that the wife had commenced proceedings for settlement of property. He said he was unable to recall the exact date but that they reconciled just before the first hearing of the wife’s Application before Judge Kelly. He said he was unable to remember the exact dates of the parties’ separation at that period.
The husband denied in cross-examination that the period between 2004 and 2019 had been difficult years for he and the wife notwithstanding that he conceded that they had lived apart for several months on two different occasions commencing firstly in late 2004 and secondly in late 2008 and had been separated for a period of months commencing October 2011 and then finally in March 2019.
As well as finding that allegations with respect to the wife’s conduct and behaviour towards him during the period of the parties’ marriage was vague and comprised mainly his opinions and beliefs, I am further satisfied they reflected a level of anger and hostility towards the wife which was reflected in post-separation communications with the wife. Examples of this communication were referred to in paragraph 35 of the wife’s affidavit filed on 7 July 2021.
I found the husband’s answers in cross-examination overall to be evasive and his demeanour and attitude at best dismissive, and at worst aggressive.
The allegations made by the wife were in the main detailed and specific. The wife was cross‑examined by the husband’s counsel and I find she answered the questions in a considered and truthful manner to the best of her recollection.
It was clear from the wife’s demeanour in the witness box that recounting her experiences of violence and threatening behaviour towards her by the husband during the period of the parties’ marriage was distressing as was the recollection of the impact on her of the husband’s acknowledged corporal punishment and aggressive behaviour towards the parties’ children, in respect of which I accept for the most part she felt unable to prevent.
Nevertheless it was of significance that she sought police assistance on several occasions and separated from the husband on three occasions prior to the final separation in March 2019. It was of further significance that the parties’ two elder children have had nothing to do with their father, as acknowledged by him, for some twelve to thirteen years, and Z at the tender age of 20 years is a protected person under an Interim Intervention Order in respect of which her father is the defendant.
Taking all of these matters into account I accept and prefer the evidence of the wife to that of the husband where it conflicts on the issue of family violence.
I find that during the period of the marriage the wife was subject to threatening and violent behaviour towards her by the husband, specifically that which resulted in the husband being required by Families SA to live apart from the wife and the children for a period of several months from late 2004 to approximately April 2005, and the further periods of separation between the parties of approximately six months from late 2008 to mid-2009, several months commencing in about October 2011, and the final separation in March 2019 when the wife and the parties’ child Z left the former matrimonial home.
I am satisfied that each period of separation should be categorised as a separation in the parties’ relationship and not merely, as suggested by the husband, just living in separate houses for two of those periods.
I accept the wife’s evidence that each separation occurred because of violence and threats towards her and towards the parties’ children.
It was submitted by counsel for the wife that the Court should find that the wife’s contributions throughout the period of the parties’ marriage had been more arduous both because of the abuse that she had suffered herself and been forced to observe directed to the parties’ children by the husband, as well as the impact on her of having to be the sole parent for the children during periods where the parties separated because of the violence exhibited both towards her and to the children.
I accept that the wife’s contributions were made more arduous by the husband’s conduct, notwithstanding that the wife has not quantified in financial terms the effect of the family violence.
I accept the husband’s behaviour towards the wife caused her regular and significant stress and distress, and that the level of abuse towards her and the children caused her to be genuinely afraid of the husband.
I find that she was able to continue her employment for the most part and was able to be a stable supportive primary caregiver for the parties’ four children.
In Kennon at 84,294 Fogarty and Lindenmayer JJ said:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s.79. We prefer this approach to the concept of "negative contributions" which is sometimes referred to in this discussion.
In the same case Baker J said at [169] on p 84,329:
…The incidence of domestic violence in a marriage would generally be a relevant factor when the Court comes to assess contributions pursuant to the provisions of s79 for the reason that the contributions made by a party who has suffered domestic violence at the hands of the other party may be all the more onerous because of that violence and therefore attract additional weight.
In Keating & Keating [2019] FamCAFC 46 at [27] to [43] Ainslie-Wallace and Ryan JJ discussed the three factors identified in S & S [2003] FamCA 905 as being required to be taken into account by the Court in assessing whether family violence had a “discernible impact” on the victim including evidence that would enable the Court to quantify the effect of the violence upon the capacity of the victim to “contribute” to the acquisition, conservation or improvement of any of the property of the parties to the marriage. Paragraph 43 included the following passage:
…Nonetheless it seems to us that his Honour’s approach to the issue of family violence as demonstrated in his reasons is persuasive of the conclusion that he misdirected his attention from the ‘discernible impact’ of the husband’s violence on the wife’s capacity to make contributions focussing instead on there being no evidence allowing ‘quantification’ of that effect…
It is notable that on the husband’s evidence the wife’s income supported the family for the last ten years of the marriage. This required the wife to attend at her place of work on several days each week, and on her evidence, at least from 2017, on four days each week.
During this time one of the three periods of separation prior to the final separation occurred from late 2011 to approximately April 2012. I find this separation resulted from family violence directed to the wife and in particular the parties’ child Z.
There was no evidence adduced by the wife that could be described as evidence that “quantifies” the impact on her of the violence. Nevertheless, I am satisfied that the evidence contained in paragraph 27 of the wife’s affidavit filed 30 April 2021 in respect of which she was not challenged was of particular significance with respect to the “discernible impact” on her of both being the victim of domestic violence on the part of the husband and the observer of violence directed by him towards the parties’ children. At least from 2009 this all occurred whilst she was the sole income earner for the family.
I find that an adjustment of five per cent is appropriate in the circumstances of this case on account of the wife’s contributions being made more arduous than they would otherwise have been because of impact of the violence directed towards her and her observation of the violence directed towards the parties’ children.
In making this five per cent adjustment I do not take into account the conduct of the husband post-separation. The adjustment is directed specifically to the impact on the wife’s contributions during the period of the marriage.
At the time the parties separated Z was aged 17 years. It was common ground that whilst she continued her education for the remainder of 2019 prior to attaining the age of 18 years in February 2020, the only financial contribution made to her support by the husband was an amount somewhere between $200 and $400. He and the wife provided Z with the Motor Vehicle 3.
Not only did the wife have the sole financial responsibility for Z for the twelve months post‑separation but she was also solely responsible for Z’s day to day care. I am satisfied that such a post-separation contribution on the part of the wife should be addressed by a further two per cent adjustment in her favour.
Taking all of those matters into account I am satisfied that the parties’ contributions should be assessed as to fifty-seven per cent on the part of the wife and forty-three per cent on the part of the husband.
Section 75(2) factors
The wife is aged 60 years and the husband 63 years.
In the wife’s affidavit filed 30 April 2021 she deposed in paragraph 44 to suffering from hypertension, chronic back pain and headaches as well as wearing a mouthguard to prevent grinding her teeth.
She deposed to damage in her vertebrae and to attending upon a chiropractor every one to two weeks as well as using a hip strap when driving and taking ibuprofen and using ice packs to manage her headaches. She further deposed to attending upon a psychologist on a handful of occasions and there being times when she has been close to suicide as a result of the stress of the proceedings.
The wife did not adduce any medical evidence with respect to those issues and has not sought any adjustment in her favour in that regard.
In paragraph 106 of the husband’s affidavit filed 28 January 2022 he deposed to being in very poor health. In paragraph 114 he deposed to health issues including suffering from hypertension, diverticulitis disease, severe depression, anxiety, respiratory problems and having several spots on his liver and spleen. He further deposed to lower back problems and being diagnosed with post-traumatic stress disorder.
The wife continues to work four days per week for the J Company with gross income of approximately $1,500 per week. She receives a bonus on one occasion per year and in December 2021 the bonus amounted to approximately $1,400.
The husband has no income other than approximately $12 per week gross whilst imprisoned. He has not been in the paid workforce since 2009 other than at a very minimal level for a short period of time.
The only significant property owned by the parties consists of the former matrimonial home and their respective member benefits in their self-managed superannuation fund.
The husband is of an age to access his superannuation benefits and the wife is of an age where she is able to commence transitioning to retirement and accessing part of her superannuation benefits for that purpose.
I accept that the husband has limited capacity for appropriate gainful employment taking into account his lack of relevant work history for some twelve to thirteen years and his age.
I accept the wife’s evidence that she is keen to retire from her employment at the earliest time possible and further, that although she has a long work history, she is now aged 60 years, she had worked for the same employers for almost all of her working life and they are of an age where their own retirement is likely to occur in the foreseeable future.
I am satisfied that it would be unlikely that the wife would be able to easily transition to other employment.
The wife has deposed to modest commitments to support herself noting that Z, who is now aged 20 years, remains living with her and as a university student is only in receipt of income of approximately $200 per week. The wife estimated that she pays approximately $70 per week towards Z’s university fees and food. Her income is modest and her expenses are modest and reasonable.
It is not possible to ascertain the commitments of the husband necessary to support himself in circumstances where he has been incarcerated for in excess of twelve months but is apparently now being released from prison.
The husband was residing at the former matrimonial home prior to being imprisoned which property has been freehold for many years. The only liability deposed to by the husband in his financial statement filed 28 January 2022 was fifty per cent of the amount owing by him under the Charging Order to which I have referred earlier herein.
I am unable to comment on the eligibility of the husband for a pension allowance or benefit. Prior to his incarceration he was in receipt of a Centrelink Newstart allowance.[11]
[11] Husband’s affidavit filed 28 January 2022 – paragraph 109.
I have referred earlier herein to his immediate tax-free eligibility for any benefits due to him with respect to his member benefit in the parties’ self-managed superannuation fund in accordance with the determination of the parties’ property settlement dispute, and likewise, the wife’s eligibility to commence to access such funds.
Following upon the parties’ separation and prior to his incarceration the husband remained living rent free in the parties’ former matrimonial home. The home provided comfortable but modest accommodation.
Upon separation the wife and Z moved into rented accommodation, with the wife deposing in paragraph 17 of her affidavit filed 7 July 2021 to having expended to that date some $37,000 in rent.
Although I am satisfied that the wife’s standard of living post-separation has been reasonable in the circumstances, I am mindful that the expense attached thereto has been significantly greater than that of the husband.
It is important in the circumstances of this case that as far as possible the outcome permits both parties to enjoy a reasonable standard of living. That outcome however is subject to the necessity that it effect justice and equity as between the parties.
It is the intention of the Court to include in the order to be made a provision enabling the husband to retain the former matrimonial home. That accords with the position of both parties.
The remaining fact or circumstances which in my opinion the justice of this case requires to be taken into account is the question of the extent of the husband’s liability for the Charging Order over his interest in the former matrimonial home referred to earlier in these reasons.
It was the husband’s position as set out in paragraphs 47 to 52 inclusive of his affidavit filed on 28 January 2022 that the wife was fully aware of his claim against the State and fully supportive at the time the claim was lodged. He further deposed to the wife encouraging him to pursue the issue. It was his position that the Charge should be regarded by the Court as a joint liability of the parties.
In the wife’s affidavit filed 7 July 2021 she deposed in paragraphs 13 to 13.3 to issues relating to the Charging Order. It was her evidence that she became aware through correspondence addressed to her that she found in the letterbox at the former matrimonial home on 14 June 2021, that there had been a court hearing in the Supreme Court of South Australia with respect to a “Charging Order”. At the same time she discovered letters from process servers who had attempted to serve her at the Suburb E property.
She deposed to speaking to C Lawyers who had forwarded the correspondence to her, as well as to someone at the Supreme Court, and receiving by email a copy of the Charging Order from the Supreme Court of South Australia on 15 June 2021.
She deposed to instructing her lawyers on 24 June 2021 to forward correspondence to Ms U at C Lawyers requesting details as to the Charging Order. By correspondence received in response she was advised by her solicitor that Ms U of C Lawyers had confirmed the total amount charged on the property was $102,880.91, of which $5,230.03 was interest accrued. That correspondence was annexed to the wife’s affidavit of 7 July 2021 and marked “Annexure J”.
The wife’s counsel cross-examined the husband about the issue of the Charging Order. The husband denied that he had failed to discuss the topic of the proceedings he initiated against the State of South Australia with the wife. He further denied the proposition that if the topic was discussed at all it was not with any degree of frequency.
The husband agreed that the wife had not attended at any lawyers offices with him about the matter and further that he had represented himself at a trial which took place over eleven days. He denied that he had not told the wife or her solicitors that he was proceeding to trial on a self‑represented basis.
It was the husband’s case that he had told the wife on many occasions what he was doing over the years, that they had discussed it on hundreds of occasions and they had gone “through every little bit of the Correctional Services Act.”
The husband said he was unable to recall if he had told the wife in the week prior to the commencement of the Supreme Court trial of its imminent start but said she was aware that he was going to trial. He further said he contacted the wife regarding the Supreme Court trial and how it was proceeding on some days.
When asked if he had kept the wife advised of offers to resolve the matter received from the State, he replied that she had attended meetings with him in regards to the matter and was always aware that the matter was proceeding to trial.
He said he did not tell the wife of the Supreme Court judgment when it was delivered as he was unable to. He agreed that at no stage during these proceedings had he annexed a copy of the judgment to any material that he filed. He further agreed that he had not brought the fact that judgment had been delivered in the Supreme Court to this Court’s attention.
He said that perhaps in 2018 and certainly in the first few months of 2019 he had attended before Masters in the Supreme Court, both male and female, on maybe two to four occasions and discussed with them the issue of him taking the matter to trial. He said that the wife had attended with him at every meeting with a Supreme Court Master. He said that there had been a mediation with the wife attending with him.
It was put to the husband that he was lying and that the wife had attended with him on one occasion only during which an offer of settlement was made by the Crown. In response he said that the wife had been to more than one meeting and that she was aware he was going to trial. When asked if he recalled attending a meeting with the wife at a time an offer for settlement was made he replied that he did and that she agreed with him that they should proceed to trial.
The husband denied the wife’s counsel’s proposition that the wife had put him under pressure to settle. He said that he had never been pressured by her in that regard and that after that meeting the wife had helped him to draft further documents.
He said that he didn’t recall exactly when he had filed the proceedings against the State but thought it was somewhere between August and October 2009 as the file had a 2009 number.
He agreed that when the costs order had been made against him in the Supreme Court he had not told this Court or the wife’s solicitors. He said he became aware of the Charging Order over his interest in the Suburb E property in June 2021 while he was in the V Prison.
When he was asked whether he had advised the wife’s solicitors when he became aware of the Charging Order over the property he said he had and that he had sent them a letter in relation to the costs being ordered against him.
When it was put to him that he had made no effort to compromise the debt with the Crown after becoming aware of the Charging Order he replied that he was barred from writing letters to anyone. He said that he took to be true the proposition put to him by the wife’s counsel that the debt was incurring interest at the rate of $485 per month.
I find the husband’s evidence about the issue of the proceedings in the Supreme Court and the resulting Charging Order against his interest in the Suburb E property to be lacking credibility as regards the wife being integrally involved in the process from the very beginning and regularly consulted by him with respect to the prosecution of his claim.
Overall I found the wife to be a witness of truth. Her evidence-in-chief and in cross‑examination illustrated a calm and measured position notwithstanding her obvious distress arising from being required to relive the husband’s conduct towards her and their children in the witness box. I find that overall it lacked the vagueness and histrionic attitude reflected both in the husband’s evidence-in-chief in his trial affidavit and in his answers and demeanour obvious during cross-examination.
I find however that the husband’s evidence was credible as to the wife’s attendance for a mediation in relation to the Supreme Court proceedings, particularly in light of the wife’s counsel putting to the husband that the wife had pressured him to accept an offer to resolve the costs matter put to him on behalf of the Crown.
Nevertheless, particularly taking into account the husband’s conduct towards the wife during the period of the marriage and post-separation I am not satisfied he would have engaged in any meaningful discussion with her regarding his intentions, and if anything would simply have dictated his proposed course of action to her.
I am unable to find on the evidence that any adjustment should be made in favour of the husband to take into account his liability for the outstanding amount secured by the Charging Order.
In addition, I am satisfied that the wife’s working life is limited and although she currently has a greater earning capacity than does the husband and may well do for the next few years she has had to pay significant rent to house herself for a period of three years since separation, and in the event that she determines to buy a property in which to reside in the future she will have significant costs associated with such a purchase. This is in contrast to the husband having had the freehold use of the former matrimonial home post-separation and the likelihood that he will do so in the future unless he chooses to dispose of the property.
I am not satisfied justice and equity requires an adjustment in favour of the wife with respect to the amounts paid by her in respect of utility outgoings for the former matrimonial home for a period of time post-separation, notwithstanding orders providing for the husband to meet those liabilities. Current utility accounts are now outstanding and will, pursuant to the terms of this order, become the responsibility of the husband to the exoneration of the wife.
For those reasons I am not satisfied that any further adjustment should be made to my findings as to contribution.
CONCLUSION
I am satisfied that justice and equity will be served by way of the parties’ assets being divided as to fifty-seven per cent to the wife and forty-three per cent to the husband. That would result in the wife retaining assets to a value of $861,057 and the husband retaining assets to the value of $649,570. As I said earlier, I intend to order that the husband retain the former matrimonial home.
I am mindful that ultimately the liability for the Charging Order which is accruing interest will need to be addressed by the husband but I find it has arisen as a result of a decision he made without consultation with the wife and therefore not a debt in respect of which she should bear any responsibility.
The husband’s counsel submitted that he wished to retain the AA Company shares in the parties’ joint names and the gold coins and silver ingot.
The coins and ingot are in the possession of the wife. They formed part of the valuation of items of personalty in her possession of Mr L dated 10 March 2020, with an agreed value of $3,825.
Taking into account the toxic relationship between the parties in this matter, I find that it is in the interests of both parties to avoid as far as possible the need to exchange items. In those circumstances I find that the gold coins and silver ingot should be retained by the wife at the value of $3,825 and the wife should transfer her interest in the AA Company shares to the husband and he should retain them at a value of $3,248.
The wife proposed that the funds in the joint FF Bank account number #...77 taken into account at an agreed value of $2,529 and those in the joint G Bank account number #...46 in an agreed amount of $604 be retained by her.
Although the various draft minutes of order tendered by the wife’s counsel for consideration by the Court did not include reference to the use of those funds, in submissions he referred to the wife using those funds to satisfy outstanding council rates and a valuation fee.
I intend to order that the husband pay and discharge all rates, taxes and other outgoings accruing with respect to the former matrimonial home past, present or future. In those circumstances I intend that the wife transfer her interest in those accounts to him. I further intend to order, taking into account that the husband will be retaining these funds and has in addition savings of $12,000, that all outstanding rates, taxes and other outgoings be paid by him on or before 15 March 2022.
The wife has been concerned for some time about the impact on her credit rating of unpaid utility accounts in respect of which she has a liability. I find it is important that any of the parties’ outstanding liabilities arising from counsel rates, water rates and Emergency Services Levy be paid as a priority and that the husband indemnify the wife in future with respect to the utility and Emergency Services Levy accounts.
The wife currently has non-superannuation assets in her possession to a value of $12,605 comprising her household chattels and effects at a value of $8,780 and the gold coins and silver ingot at a value of $3,825.
For the reasons given the husband will retain non-superannuation assets to a value of $677,726 comprising:
·the former matrimonial home - $666,000;
·AA Company shares - $3,248;
·FF Bank account funds - $2,529;
·G Bank account funds - $604;
·camper trailer - $500; and
·household contents and effects - $4,845.
This results in him retaining assets worth $28,156 more than that to which I have found he is entitled.
To effect the outcome I have determined, namely that overall the wife retains assets to a value of $861,057 and the husband to a value of $649,570, the wife is entitled to retain assets to a further value of $848,452.
I have determined for the purposes of these proceedings that the value of the Winnel Superannuation Fund is $820,296.
If the wife was to retain all of the assets owned by that fund she would still only retain total assets to a value of $832,901, some $28,156 less than what I have determined is her proper entitlement. The amount of $28,156 equates to a little over 1.85 per cent of the total asset pool.
Notwithstanding the adjustments that I have made in favour of the wife on account of contribution, I find that short of an order for sale of the former matrimonial home, the husband has insufficient funds available to satisfy a payment of $28,156 to the wife. This is the case notwithstanding taking into account the non-superannuation assets he is retaining and the $12,000 that he retains in savings from his half share of the parties’ joint savings at separation, which I have found should not form part of the asset pool. I find further that it is unlikely he will have any capacity to borrow against the equity in the property to meet such a payment. I am not satisfied that an order for sale would be just and equitable.
The orders that I intend to make result in the husband retaining the former matrimonial home and the wife retaining the entirety of the parties’ superannuation entitlements. This effects a clean financial break between the parties.
The orders do not require any items to be physically exchanged between the parties in circumstances where the wife already has possession of the gold coins and silver ingot and documentation can be executed by her to enable the husband to register a transfer of her interest in the AA Company shares to him.
The order for settlement of property will include a transfer of the wife’s interest in the funds in the FF Bank and G Bank joint accounts to the husband. This will put the husband in funds to pay towards outstanding utility accounts to the exoneration of the wife. In the event those funds are insufficient he still has to hand his savings.
I am satisfied that the order that I propose effects justice and equity as between the parties for the reasons given.
For those reasons I make the orders as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and thirty-two (232) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mead. Associate:
Dated: 23 February 2022
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