Winnel & Winnel

Case [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…

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Winnel & Winnel [2022] FedCFamC1F 82
Case
[2022] FedCFamC1F 82
Decision Date

CaseChat Overview and Summary

The case of Winnel & Winnel involved a dispute between the husband, Mr Winnel, and the wife, Ms Winnel, over the division of their superannuation entitlements and other assets following their separation. The matter was heard in the Family Court of Australia, where the wife sought a larger share of the husband's superannuation and certain other assets, while the husband argued for a more equal division. The court was required to determine the appropriate division of the parties' assets, taking into account their financial circumstances, contributions to the relationship, and the needs of any children.

The legal issues in the case centred around the principles of fairness and equity in the division of assets upon the breakdown of a marriage. The court had to consider the length of the marriage, the contributions made by each party, the respective incomes and earning capacities, and the needs of any children. In this case, the court also had to consider the impact of the husband's incarceration on the division of assets and the wife's need for financial security.

In reaching its decision, the court considered the evidence presented by both parties, including their financial statements, employment histories, and contributions to the relationship. The court found that the wife had made significant contributions to the relationship through her employment and care of the children, while the husband had also contributed through his work and entrepreneurial activities. The court also noted the husband's incarceration and the impact it had on his ability to contribute to the relationship. Ultimately, the court found that a 57/43 split in favour of the wife was appropriate, taking into account the various factors mentioned above.

The final orders of the court provided for the division of the parties' assets as described above, with the wife retaining the former matrimonial home and the husband retaining certain shares and personal items. The court also ordered the husband to pay all outstanding rates, taxes, and other outgoings associated with the former matrimonial home and to indemnify the wife for any future utility and Emergency Services Levy accounts. The wife was ordered to transfer her interest in certain bank accounts to the husband, who was responsible for paying all outstanding liabilities and outgoings by a specified date.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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