Barnes and Barnes - [2009] FMCAfam 550

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARNES & BARNES

[2009] FMCAfam 550

FAMILY LAW – Property – date to be used to value wife’s superannuation interests – assessment of contributions – post separation contributions – assessment of contributions to superannuation – s.75(2) factors – parties’ children aged 10, 8 and 3 live predominantly with mother – relevance of child support considerations – just and equitable.

Family Law Act 1975, ss.75(2); 79

Lee Steere v Lee Steere (1998) FLC 91-626
Ferraro v Ferraro (1993) FLC 92-355
Clauson v Clauson (1995) FLC 92-595
Hickey & Attorney-General of the Commonwealth of Australia (Intervenor) (2003) FLC 93-143
Biltoft & Biltoft (1995) FLC 92-614
C & C (2005) FLC 93-220
Russell v Russell (1999) FamCA 187
Waters & Jurek (1995) FLC 92-635
D & D [2003] FamCA 473
Pierce & Pierce (1999) FLC 92-844
Collins & Collins (1990) FLC 92-149

Applicant:

MR BARNES

Respondent:

MS BARNES

File Number:

ADC2448 of 2008

Judgment of:

Brown FM

Hearing dates:

17 February & 1 April 2009

Date of Last Submission:

1 April 2009

Delivered at:

Adelaide

Delivered on:

5 June 2009

REPRESENTATION

Counsel for the Applicant:

Mr Whittle

Solicitors for the Applicant:

Helen Campbell & Associates

Counsel for the Respondent:

Ms Dickson

Solicitors for the Respondent:

Andrew Rogers Lawyers

ORDERS

In full and final settlement of all claims for matrimonial property:

Within thirty (30) days of the date of these orders the wife pay to the husband the sum of $62,000.00.
Contemporaneously with the payment referred to in order 1 hereof the husband do all acts necessary and sign all documents at this sole expense required to remove the caveat lodged over the property known as and situate at Property R in the State of South Australia and being the whole of the land known as and described in Certificate of Title Book Volume [omitted] (herein referred to as the former matrimonial home).
The wife is hereby declared to be the beneficial owner of the former matrimonial home and the husband is hereby declared to have no estate or interest either at law or in equity in the property.
It is a condition of order 3 hereof that the wife pay all necessary outgoings including rates, taxes and mortgage payments as they fall due arising from her occupation of the former matrimonial home and keep the husband indemnified against all such liabilities.
The husband is hereby declared to be the beneficial owner of the property located at Property E and being the whole of the land known as Certificate of Title Book Volume [omitted] and the wife is hereby declared to have no estate or interest either at law or in equity in the property.
It is a condition of order 5 hereof that the husband pay all necessary outgoings including rates, taxes and mortgage payments as they fall due arising from his occupation of the Property E property and keep the wife indemnified against all such liabilities.
The wife shall retain all assets and resources which she…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barnes and Barnes

Details

AGLC: Barnes and Barnes [2009] FMCAfam 550
Case: [2009] FMCAfam 550
Decision Date: 5 June 2009

CaseChat Overview and Summary

The case of Barnes and Barnes involved a dispute between a husband and wife regarding the division of their matrimonial property. The matter was heard and determined by the Family Court of Australia. The central issue before the court was the equitable distribution of assets acquired during the marriage, including the former matrimonial home, prospective entitlements, and personal belongings.

The court was required to decide on the fair allocation of the parties' financial resources, taking into account factors such as contributions to the marriage, future needs, and the welfare of any children. The court also needed to address the transfer of certain assets, such as the Australian Scholarships Group policy for their children.

The court's reasoning focused on the principles of fairness and justice in the division of matrimonial property. The court determined that the husband should pay $62,000 to the wife and remove the caveat over the former matrimonial home, which would then vest in the wife. Conversely, the husband was declared the beneficial owner of Property E. The court also addressed the division of personal assets, life insurance policies, and superannuation entitlements. The court ordered the transfer of the Australian Scholarships Group policy into the wife's sole name.

ORDERS:
1. Within thirty (30) days of the date of these orders the wife pay to the husband the sum of $62,000.00.
2. Contemporaneously with the payment referred to in order 1 hereof the husband do all acts necessary and sign all documents at this sole expense required to remove the caveat lodged over the property known as and situate at Property R in the State of South Australia and being the whole of the land known as and described in Certificate of Title Book Volume [omitted] (herein referred to as the former matrimonial home).
3. The wife is hereby declared to be the beneficial owner of the former matrimonial home and the husband is hereby declared to have no estate or interest either at law or in equity in the property.
4. It is a condition of order 3 hereof that the wife pay all necessary outgoings including rates, taxes and mortgage payments as they fall due arising from her occupation of the former matrimonial home and keep the husband indemnified against all such liabilities.
5. The husband is hereby declared to be the beneficial owner of the property located at Property E and being the whole of the land known as Certificate of Title Book Volume [omitted] and the wife is hereby declared to have no estate or interest either at law or in equity in the property.
6. It is a condition of order 5 hereof that the husband pay all necessary outgoings including rates, taxes and mortgage payments as they fall due arising from his occupation of the Property E property and keep the wife indemnified against all such liabilities.
7. The wife shall retain all assets and resources which she now has whatsoever and howsoever acquired (including prospective property), and the husband shall not have a claim against the wife with respect to property obtained by the wife including but without limiting the effect hereof the wife shall retain for her sole use and benefit absolutely...
8. The husband shall retain all assets and resources which he now has whatsoever and howsoever acquired (including prospective property), and the wife shall not have a claim against the husband with respect to property obtained by the husband including but without limiting the effect hereof the husband shall retain for his sole use and benefit absolutely...
9. The wife shall keep the husband indemnified in relation to all actions, claims, proceedings and demands and howsoever arising in relation to any debts and liabilities incurred in her sole name.
10. The husband shall keep the wife indemnified in relation to all actions, claims, proceedings and demands and howsoever arising in relation to any debts and liabilities incurred in his sole name.
11. The husband do all such things and sign all such documents necessary to transfer the Australian Scholarships Group policy (for the children [X] and [Y]) into the wife’s sole name.
12. All applications be otherwise dismissed.

Orders

Orders of the court

In full and final settlement of all claims for matrimonial property:

Within thirty (30) days of the date of these orders the wife pay to the husband the sum of $62,000.00.

Contemporaneously with the payment referred to in order 1 hereof the husband do all acts necessary and sign all documents at this sole expense required to remove the caveat lodged over the property known as and situate at Property R in the State of South Australia and being the whole of the land known as and described in Certificate of Title Book Volume [omitted] (herein referred to as the former matrimonial home).

The wife is hereby declared to be the beneficial owner of the former matrimonial home and the husband is hereby declared to have no estate or interest either at law or in equity in the property.

It is a condition of order 3 hereof that the wife pay all necessary outgoings including rates, taxes and mortgage payments as they fall due arising from her occupation of the former matrimonial home and keep the husband indemnified against all such liabilities.

The husband is hereby declared to be the beneficial owner of the property located at Property E and being the whole of the land known as Certificate of Title Book Volume [omitted] and the wife is hereby declared to have no estate or interest either at law or in equity in the property.

It is a condition of order 5 hereof that the husband pay all necessary outgoings including rates, taxes and mortgage payments as they fall due arising from his occupation of the Property E property and keep the wife indemnified against all such liabilities.

The wife shall retain all assets and resources which she now has whatsoever and howsoever acquired (including prospective property), and the husband shall not have a claim against the wife with respect to property obtained by the wife including but without limiting the effect hereof the wife shall retain for her sole use and benefit absolutely:

(a) the wife’s savings;

(b) the wife’s prospective entitlements arising out of her employment, including but not limited to her prospective superannuation entitlements;

(d) the furniture, furnishings and other articles of domestic use or ornament now in her possession, power or control;

(e) the motor vehicle/s now in her possession;

(f) her personal effects not otherwise specified.

The husband shall retain all assets and resources which he now has whatsoever and howsoever acquired (including prospective property), and the wife shall not have a claim against the husband with respect to property obtained by the husband including but without limiting the effect hereof the husband shall retain for his sole use and benefit absolutely:

(a) the husband’s savings;

(b) the husband’s prospective entitlements arising out of his employment including but not limited to his prospective superannuation entitlement (subject to the splitting order set out in these orders);

(d) furniture, furnishings and other articles of domestic use and ornament now in his possession, power or control;

(e) the husband’s motor vehicle/s now in his possession;

(f) the husband’s personal effects not otherwise specified herein.

The wife shall keep the husband indemnified in relation to all actions, claims, proceedings and demands and howsoever arising in relation to any debts and liabilities incurred in her sole name.

10.

The husband shall keep the wife indemnified in relation to all actions, claims, proceedings and demands and howsoever arising in relation to any debts and liabilities incurred in his sole name.

11.

The husband do all such things and sign all such documents necessary to transfer the Australian Scholarships Group policy (for the children [X] and [Y]) into the wife’s sole name.

12.

All applications be otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.