FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Barbour & Barbour [2024] FedCFamC2F 989
File number(s): NCC 1290 of 2023 Judgment of: JUDGE BETTS Date of judgment: 19 July 2024 Catchwords: FAMILY LAW – Property – thirty-one year relationship – where there are two major assets, being the two jointly owned properties from the relationship – where the wife seeks to retain the property she resides in – where the Court must consider the value of the two real properties – where the wife seeks an adjustment under Kennon – where the Court must assess the husband’s conduct and non-disclosure throughout the proceedings – whether there should be any s75(2) adjustments – just and equitable outcome. Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth), Pt VIII
Cases cited: Black & Kellner (1992) FLC 92-287
Britt & Britt (2017) FLC 93-764
Hickey v Hickey & Attorney General for Commonwealth of Australia (Intervener) (2003) FLC 93-143
Keating & Keating [2019] FamCAFC 46
Kennon& Kennon (1997) FLC 92-757
Mezzacappa & Mezzacappa (1987) FLC 91-853
S & S [2003] FamCA 905
Stanford & Stanford (2012) FLC 93-518
Division: Division 2 Family Law Number of paragraphs: 146 Date of last submission/s: 5 July 2024 Date of hearing: 2, 4 and 5 July 2024 Place: Newcastle Counsel for the Applicant: Mr Graham Solicitors for the Applicant: Bale Boshev Lawyers Solicitors for the Respondent: N/a – Self-represented ORDERS
NCC 1290 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BARBOUR
Applicant
AND: MR BARBOUR
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
19 JULY 2024
THE COURT ORDERS THAT:
1.That within 30 days of the date of these Orders, the parties do all acts and things to transfer to the Applicant all of the Respondent’s right, title and interest in the property known as and situated at C Street, Suburb D in the State of New South Wales (“C Street”)
2.That simultaneously with Order 1, the parties do all acts and things to transfer to the Respondent all of the Applicant’s right, title and interest in the property known as and situated at E Street, Suburb D in the State of New South Wales (“E Street”)
3.That pending the transfer of C Street, the Applicant shall be entitled to exclusive use and possession of the property provided that she shall pay all rates, taxes and other outgoings including any associated loan repayments as and when they fall due.
4.That pending the transfer of E Street, the Respondent shall be entitled to exclusive use and possession of the property provided that he shall pay all rates, taxes and other outgoings including any associated loan repayments as and when they fall due.
5.That within 7 business days of the date of these Orders, the parties do all acts and things to cause the F Shares held in the joint names of Ms Barbour and Mr Barbour to be transferred to the sole name of Ms Barbour for her sole use…
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- Barbour & Barbour [2024] FedCFamC2F 989
- Case
- [2024] FedCFamC2F 989
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CaseChat Overview and Summary
The legal issues before the court included the valuation of the two properties, the application of the Kennon principles for property adjustments, and the husband’s conduct during the proceedings. The court considered the duration of the relationship, the contributions of each party, and the specific circumstances of the case. Additionally, the court had to assess whether the husband’s non-disclosure and conduct justified any adjustments under section 75(2) of the Act. The court concluded that the husband’s conduct warranted an adjustment in favour of the wife.
The court ordered that the property at C Street be transferred to Ms Barbour, while the property at E Street be transferred to Mr Barbour. The F Shares were to be transferred to Ms Barbour’s sole name. Pending the transfer of these properties, each party was granted exclusive use and possession, with the responsibility for associated outgoings. The wife was required to make a payment of $4,111.00 to the husband, though this payment was stayed pending further order. Each party was to retain all other property in their sole possession and indemnify the other party for any liabilities related to the retained property. The court appointed a Judicial Registrar to execute any necessary documents if either party failed to comply within seven days.
The proceedings were adjourned to consider any costs application by the wife. The wife was required to serve written submissions on the husband by 15 August 2024 if she intended to bring such an application. The form of the order was subject to review and variation as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Orders
Orders of the court
NCC 1290 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS BARBOUR
Applicant
AND:
MR BARBOUR
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
19 JULY 2024
THE COURT ORDERS THAT:
1. That within 30 days of the date of these Orders, the parties do all acts and things to transfer to the Applicant all of the Respondent’s right, title and interest in the property known as and situated at C Street, Suburb D in the State of New South Wales (“C Street”)
2. That simultaneously with Order 1, the parties do all acts and things to transfer to the Respondent all of the Applicant’s right, title and interest in the property known as and situated at E Street, Suburb D in the State of New South Wales (“E Street”)
3. That pending the transfer of C Street, the Applicant shall be entitled to exclusive use and possession of the property provided that she shall pay all rates, taxes and other outgoings including any associated loan repayments as and when they fall due.
4. That pending the transfer of E Street, the Respondent shall be entitled to exclusive use and possession of the property provided that he shall pay all rates, taxes and other outgoings including any associated loan repayments as and when they fall due.
5. That within 7 business days of the date of these Orders, the parties do all acts and things to cause the F Shares held in the joint names of Ms Barbour and Mr Barbour to be transferred to the sole name of Ms Barbour for her sole use and possession.
6. That simultaneously with the transfers of E Street and C Street, the wife is to pay the husband the sum of $4,111.00 with such payment to be stayed pending further order NOTING that the wife may be pursuing a costs application.
7. Except as otherwise provided, each party will retain all other property in their respective name, possession and/or control to the exclusion of the other party and each party will indemnify the other party in respect of any liabilities relating to any item of property retained by him or her. To avoid doubt:
(a) The husband is to be liable for any outstanding rates, charges, water charges or other outgoings in respect of E Street, Suburb D.
(b) The husband is to solely retain all of his right, title and interest in and to the Town G property to the exclusion of the wife.
8. That if either party refuses or neglects to execute and/or return any document necessary to give effect to these Orders within 7 days of being called upon to do so in writing, then:
(a) A Judicial Registrar of the Newcastle Registry of the Federal Circuit and Family Court of Australia (Division 2) is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute any such document on behalf of the defaulting party upon application by the non-defaulting party, and;
(b) The defaulting party shall pay the non-defaulting party’s costs of and incidental to the application pursuant to this Order as agreed or assessed.
9. The reasons for judgment be taken out in writing and provided to the parties.
10. The proceedings are adjourned for directions to 29 August 2024 at 9.30am to consider any costs application brought by the wife. Both parties have leave to appear by telephone and the link is:
(a) Dial: …
(b) Enter Conference ID: …#
11. If the wife intends to bring a costs application she is to serve the husband with written submissions setting out the basis for her application by no later than 15 August 2024.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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