Barre & Barre
[2021] FamCA 101
FAMILY COURT OF AUSTRALIA
| BARRE & BARRE | [2021] FamCA 101 |
| FAMILY LAW – BINDING FINANCIAL AGREEMENT – Enforcement – Where there is a financial agreement under s 90B of the Family Law Act 1975 (Cth) – Where financial agreement is binding - Where parties seek enforcement under s 90KA of the Family Law Act 1975 (Cth) – Whether necessary for the Court to resort to equitable remedy of specific performance – Where ss 31 and 32 of the Judiciary Act1903 (Cth) grant wide powers to grant legal and equitable remedies for enforcement of a financial agreement – Where s 90G(2) of the Act give wide discretion to make such orders as it thinks necessary –Where resort to specific performance unnecessary. FAMILY LAW – BINDING FINANCIAL AGREEMENT – Where creditor of party to binding financial agreement is joined as a party to proceedings under s 90KA of the Act – Where creditor also claims to have had de facto relationship with that party for a period in excess of two years - Whether creditor has standing to set aside the binding financial agreement. FAMILY LAW – BINDING FINANCIAL AGREEMENT – Enforcement – Certainty of terms – Where parties themselves make no challenge to the certainty of the terms of a binding financial agreement – Whether Court must form its own view of the certainty of the terms of a binding financial agreement before enforcement orders can be made. FAMILY LAW – BANKRUPTCY – Where husband becomes bankrupt on his own petition after judgment is reserved – Where trustee in bankruptcy makes no election pursuant to s 60 of the Bankruptcy Act 1966 (Cth) – Where husband’s claims stayed but not deemed to be abandoned. FAMILY LAW – BANKRUPTCY – Property of the bankrupt – Where husband becomes bankrupt on his own petition after judgment is reserved –.Whether right to litigate enforcement of a binding financial agreement is a chose in action and property of the bankrupt assigned to the trustee in bankruptcy by force of s 58 of the Bankruptcy Act 1966 (Cth) – Whether the rights of performance, benefits and entitlements of a party in a binding financial agreement are assignable choses in action and property of the bankrupt assigned to his trustee in bankruptcy. FAMILY LAW – BANKRUPTCY – Jurisdiction in bankruptcy – Where trustee in bankruptcy becomes a party to proceedings under s 90KA of Part VIIIA of the Act for enforcement of a binding financial agreement – Whether proceedings to enforce a binding financial agreement are “property settlement proceedings in relation to either or both of the parties to the marriage” – Meaning of proceedings “with respect to the property of a party to a marriage or either of them” and “the vested bankruptcy property in relation to a bankrupt party to the marriage” – Whether jurisdiction of Family Court enlarged by force of s 35 of the Bankruptcy Act, 1966 to include jurisdiction “in relation to any matter connected with, or arising out of, the bankruptcy of the bankrupt”. FAMILY LAW – SUPERANNUATION – Jurisdiction to make splitting orders in proceedings under Part VIIIA of the Act – Where no proceedings pursuant to s 79 – Whether any part of binding financial agreement is a “superannuation agreement” within Part VIIIA of the Act – Meaning of the phrase “deal with” in ss 90XH(1) and (2) – Whether any part of a binding financial agreement “deals with” superannuation interests – Where no valid superannuation agreement – Whether Court has power to order superannuation split pursuant to s 90G(2) or s 90XR of the Act – Held Court has no jurisdiction to make superannuation splitting orders. FAMILY LAW – SUPERANNUATION – Where orders sought in the nature of mandatory injunctions to compel parties to take the necessary steps as trustees or directors of a trustee company to sell property held by superannuation fund – Where mandatory injunctions sought in proceedings to allegedly enforce a binding financial agreement – Where evidence does not make clear who is the trustee – Where bankrupt husband unable to discharge functions as a director of a trustee company by reason of s 206B(3) of the Corporations Act – Where risk husband may be an inappropriate person to act as a trustee by reason of his bankruptcy – Where injunctive relief refused at present – Where final determination of superannuation issues adjourned. FAMILY LAW – CHILD SUPPORT – Where admitted arrears of child support owed by the husband – Whether child support assessment made by Child Support Registrar under the Child Support (Assessment) Act 1989 (Cth) is a “maintenance order” as defined in s 5 of the Bankruptcy Act1966 (Cth) – Whether arrears of child support are a debt discharged upon discharge from bankruptcy – Whether order of this Court would assist in recovery – Where Child Support Agency is the appropriate agency to recover arrears. FAMILY LAW – CHILD SUPPORT – Jurisdiction to make departure order – Where wife makes application for child support departure order – Where wife seeks a lump sum child support departure order – Where no evidence of service upon the Child Support Registrar in compliance with Rule 4.23 – Where Court proceedings should be the exception rather than the rule – Whether special circumstances – Where no submissions or evidence establishing why a departure order would be in the interests of both the wife and the husband so as to satisfy s 116(1)(b)(ii) of the Child Support (Assessment) Act1989 (Cth) – Jurisdiction to make departure order not established. FAMILY LAW – CHILD SUPPORT – Where wife makes application for child support departure order – Where wife seeks a lump sum payment of child support – Where husband is bankrupt – Where Court cannot on the facts available be satisfied that it would be “just and equitable” within s 123A(1)(b) of the Child Support (Assessment) Act, as regards the husband, for there to be an order for the payment of lump sum child support. FAMILY LAW – INJUNCTION – Undertaking to pay mortgage payments given to the Court – Enforcement – Order for husband to make payment. FAMILY LAW – INJUNCTION – Where “usual undertaking as to damages” given when proceedings in the Federal Circuit Court of Australia – Meaning of “usual undertaking as to damages” – Whether stranger to the litigation who later becomes a party can claim compensation pursuant to undertaking – Whether any loss established – Claim to compensation refused. |
| Bankruptcy Act 1966 (Cth), ss 5, 35, 55, 58, 59A, 60, 82, 86, 116, 133, 138, 153 Family Law Amendment Act 2005 (Cth), s 3 Family Law Rules 2004 (Cth), rr 4.23, 20.2 Real Property Act1900 (NSW), ss 57, 90 |
| Abati & Cole [2015] FamCA 185 Carter, J.W., Carter on Contract (Lexis Nexis Australia, 3rd edition, 2015) |
| APPLICANT: | Ms Barre |
| FIRST RESPONDENT: | Mr Barre |
| SECOND RESPODENT: | Barre Pty Ltd |
| THIRD RESPONDENT: | Ms Gilliam |
| FILE NUMBER: | SYC | 6149 | of | 2016 |
| DATE DELIVERED: | 8 March 2021 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Harper J |
| HEARING DATE: | 3 – 5 February 2020 |
| DATE LAST WRITTEN SUBMISSIONS WERE DUE: | 18 December 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Longworth |
| SOLICITOR FOR THE APPLICANT: | Swaab Attorneys |
| THE FIRST RESPONDENT IN PERSON: | Mr Barre |
| THE SECOND RESPONDENT IN PERSON: | First Respondent as director |
| THE THIRD RESPONDENT IN PERSON: | Ms Gilliam |
Orders and Declarations
The Court Orders:
C Street
That the Applicant Wife, Ms Barre (“Wife”) do all acts and things and sign all documents necessary to sell Unit 1, C Street, Suburb J ("C Street") at the best price reasonably attainable and thereafter to cause the sale proceeds to be disbursed or paid in the following manner and priority:
(a) In payment of the Agent's commission and Auction expenses (if any) due on the sale;
(b) In payment of the legal costs and disbursements of the sale;
(c) In payment of the amount required to discharge any mortgage secured against C Street;
(d) In payment of capital gains tax payable by the Wife on the sale of C Street;
(e) In disbursement of the amounts of $202,701, $32,310 and $39,946 to the Wife;
(f) In retention by the Wife of one half of the balance remaining, and payment of the other half of the balance remaining to the Trustee in Bankruptcy of Mr Barre, the First Respondent Husband (“Husband”).
D Street
That within 21 days of the date of these Orders the Trustee in Bankruptcy of the Husband and Wife do all acts and things and sign all documents necessary to:
(a) Give notice to any Tenant/Occupant ("Tenant") of the property situate at and known as D Street, Suburb J (Folio Identifier …) ("D Street") necessary to terminate any Lease or other right of occupation and ensure the Tenant vacates D Street as soon as practicable thereafter;
(b) Instruct Swaab to prepare a Contract for Sale of Land for D Street ("the Conveyancer");
(c) List D Street with a Real Estate Agent ("the Agent") for the sale of D Street by public Auction at the earliest possible date;
(d) Execute all documents requested by the Agent for the sale of D Street, subject to Order 4(c);
(e) Agree on the reserve price, but in default of agreement, by a Valuer appointed by the President of the NSW Division of the Australian Property Institute pursuant to clause 4.7(a) of the BFA;
(f) Request the Agent to appoint an Auctioneer to auction D Street;
(g) Attend the Auction sale and negotiate with the highest bidder in the event that the reserve price is not reached;
(h) Execute a Contract for Sale of Land in respect of the D Street, subject to Order 4(c);
(i) Co-operate in every way with the Agent in relation to the Auction and sale of the D Street; and
(j) Execute all other documents necessary to complete the sale of the D Street.
That the Trustee in Bankruptcy of the Husband and Wife do all acts and things and sign all documents necessary to cause the proceeds of sale of the D Street to be paid in the following manner and priority:
(a) In payment of the Agent's commission and Auction expenses (if any) due on the sale;
(b) In payment of the legal costs and disbursements of the sale;
(c) In payment of the amount required to discharge any Mortgage registered on the title to the D Street;
(d) In payment of capital gains tax, if any, payable on the sale of the D Street;
(e) In payment to the Wife of $62,503.41; and
(f) In payment of the balance in equal shares to the Trustee in Bankruptcy of the Husband and the Wife.
That the Husband:
(a) to the extent necessary for the purpose of carrying these orders into effect, do all acts and things and sign all documents necessary;
(b) Vacate D Street.
That pursuant to clause 4.14 of the Binding Financial Agreement dated 31 August 2005, the Trustee in Bankruptcy of the Husband, the Husband and the Wife do all acts and things and sign all documents necessary to cause the furniture, furnishings and household contents contained within D Street to be divided between them in accordance with the pick-a-pile method as follows:
(a) The Wife shall prepare two lists of the furniture, furnishings and household contents that were situated at D Street as at the date of separation and the furniture, furnishings and household contents contained in each list will be of approximate value to that contained in the other list;
(b) The Husband shall choose a list from the two lists; and
(c) The Husband shall do all acts and things necessary to deliver the items on the Wife's list to the Wife.
That for the purposes of implementation of Order 5 herein, the Trustee in Bankruptcy of the Husband and the Husband shall do all acts and things to:
(a) Enable the Wife to have unfettered access to D Street within three (3) days of the date of these Orders at a time nominated by the Wife, in order to prepare the two lists of furniture, furnishings and household contents for a period not less than eight (8) hours;
(b) Maintain the furniture, furnishings and household contents in good condition, fair wear and tear excepted.
Other
That the Husband pay to the Wife $10,473 pursuant to his undertaking to the Court on 17 December 2018.
The Wife’s claim to child support departure orders pursuant to the Child Support (Assessment) Act 1989 (Cth) be dismissed.
All issues in relation to superannuation be adjourned.
Pending further order of the Court, the Fourth Respondent, the Trustee in Bankruptcy of the Husband be restrained from declaring any dividend or making any distribution from the bankrupt estate of the Husband, other than for the payment of the Trustee’s reasonable remuneration.
The amended Application in a Case filed 24 September 2020 by the Third Respondent be dismissed.
The proceedings be otherwise adjourned to a date to be advised.
The parties have liberty to apply to relist the proceedings after 28 days from the date of these orders.
All questions of costs be reserved.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Barre & Barre has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 6149 of 2016
| Ms Barre |
Applicant
And
| Mr Barre |
First Respondent
And
| Barre Pty Limited |
Second Respondent
And
| Ms Gilliam |
Third Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings commenced in the Federal Circuit Court of Australia. At that stage, the parties were the Applicant Wife, Ms Barre, born in 1974 (“the wife”), and the Respondent Husband, Mr Barre, born in 1972 (“the husband”).
The parties have two children together, X born in 2007, presently fourteen years of age (“X”) and Y born in 2012, presently nine years of age (“Y”) (“the children”).
The parties were married in 2005. They separated on a final basis on 29 October 2015, when the wife and the children moved from the matrimonial home situated at D Street, Suburb J (“D Street”) to the maternal grandmother’s residence. The husband remained living in D Street.
Prior to their marriage, the parties entered in to a Binding Financial Agreement (“BFA”) on 31 August 2005, pursuant to s 90B of the Family Law Act 1975 (Cth) (“the Act”).[1] At the date of entering the BFA, the wife owned, and still owns, Unit 1, C Street, Suburb J (“C Street”).
[1] See Exhibit “A”, Tender Bundle to the Wife’s Trial Affidavit filed 19 December 2019, pp. 1-22
Although the wife initially sought to set the BFA aside, by the date of the trial both wife and husband sought its enforcement pursuant to s 90KA of the Act. There was no dispute the BFA was binding, however the parties disagreed on how its terms should be implemented. The wife also seeks lump sum child support.
The wife has re-partnered with Mr O and there is one child of that relationship, Z born in early 2018. The children subject to these proceedings currently reside with the mother, Mr O and their half-sister, Z.
These reasons deal only with the enforcement of the BFA and the wife’s application for child support.
In Barre & Barre; Gilliam & Barre [2019] FamCA 315 at [68] I commented “although these proceedings have the appearance of complexity, in truth the issues reduce to a reasonably manageable compass”. With the benefit of hindsight, that comment seems almost child-like in its naiveté. Contrary to any initial appearance of manageable simplicity, as will become apparent in the course of these reasons, some of the legal issues raised by the parties have considerable difficulty, while the proceedings have become overcomplicated by an alarming number of interlocutory applications, many changes of lawyers by the husband, self-representation by the husband and the third respondent, adjournments because of health problems, confusing and at times incomprehensible argument, and substantial disruption by the impact of the COVID-19 pandemic. As also explained later, after judgment was reserved the husband was made bankrupt in the Federal Circuit Court on his own petition. These factors have conspired to increase the difficulty of formulating judgment and to cause delay in its delivery.
The parties
The wife
The wife is employed as a Consultant with P Company, a position she has held for 20 years. The wife gave her evidence clearly and frankly. I generally accept her evidence.
The husband
Up to the date of hearing, the husband appears to say he was a driver earning a weekly salary of $1,800.[2] He was and still is director and sole shareholder of the second respondent, Barre Pty Limited (“Barre Pty Ltd”). His evidence was disorderly and difficult to follow at times. There was some evidence that he has suffered from a bipolar disorder and takes medication, although the exact impact of this upon his capacity to represent himself was not clear, as discussed below in these reasons.
[2] Husband’s Financial Statement filed 30 January 2020.
His conduct during the proceedings was characterised by a failure to comply with orders, and a lack of financial disclosure. There was undisputed evidence that he failed to pay the D Street mortgage in accordance with an undertaking he gave to the Court, and child support is in arrears.
Barre Pty Ltd
Barre Pty Ltd has two issued shares which are held by D Pty Limited, of which the husband is sole director and shareholder. During the proceedings, Barre Pty Ltd sold a property at G Street, Suburb B (“G Street”). The proceeds of sale were placed into a controlled monies account held in the name of Swaab Attorneys as trustees for the husband and the wife. As will be explained more fully later in these reasons, the funds in the controlled monies account have been exhausted by a series of distributions pursuant to Court orders during the proceedings.
Ms Gilliam
After the separation from the wife, the husband re-partnered for a time with the third respondent, formerly the fourth respondent, Ms Gilliam, born in 1973. They have separated. Ms Gilliam was joined by consent as a party to these proceedings because there was no dispute that she was a creditor of the husband, although the evidence was unclear, and she may have advanced funds to Barre Pty Ltd as well: see Barre & Barre [2020] FamCA 455 at [9].
It is important to note here that Ms Gilliam has commenced her own proceedings, being SYC342/2019, against the husband under Part VIIIAB of the Act seeking a declaration that a de facto relationship had existed between them from June 2016 to December 2018 (“the de facto proceedings”). The husband denies a de facto relationship of a duration in excess of two years. The de facto proceedings were placed in my docket in early 2019; they were listed for final hearing on 1 and 2 October 2020. They have been adjourned part-heard due to medical problems of Ms Gilliam.
The quantification of Ms Gilliam’s debt as a creditor of the husband shifted during the course of the proceedings. On 21 January 2019 Ms Gilliam asserted that $317,000 was owed to her by the husband. She was ordered to file and serve a document particularising and pleading the basis for this amount.
On 30 April 2019, Ms Gilliam filed an Application in a Case seeking payment to her lawyers of $150,000 from the controlled monies account.
In my judgment of Barre & Barre; Gilliam & Barre [2019] FamCA 315 at [5] I explained that:
… in [the husband’s] Affidavit filed 17 April 2019 [in the de facto proceedings] he appears to concede that Ms Gilliam leant him a total of $150,000, he also contends he has repaid $118,000, leaving the sum of $32,000 still outstanding. However, he has conceded in open Court more than once that he owes Ms Gilliam no less than $150,000. For her part, Ms Gilliam asserts the debt is no less than $252,661…
Prior to the final hearing, by orders made in this Court on 8 May 2019 and 3 December 2019, Ms Gilliam received a total sum of $75,000 from the controlled monies account. She received a further total of $45,000 by orders of the Court on 20 May 2020 and 9 June 2020, as explained later in these reasons.
As detailed in my further judgment of Barre & Barre and Ors [2020] FamCA 455 at [8], at the final hearing, it was agreed by the husband that he owed Ms Gilliam $228,000 and Ms Gilliam accepted this was the correct figure, although in her Case Outline Ms Gilliam particularises the amount to be $228,661. For the purposes of this judgment, I will adopt the figure of $228,000.
I note the wife did not concede the existence or size of any debt owed by the husband to Ms Gilliam.
The proposals
The entirety of the orders proposed by the parties are set out below in Annexures A, B, C and D.[3]
[3] Annexure E of Wife’s Case Outline document, Husband’s Orders annexed to his submissions sent on 19 March 2020, and Ms Gilliam’s proposed orders in Trial Case Documents.
The Course of Proceedings
The proceedings were commenced on 23 September 2016 by the wife’s filing of an Initiating Application in the Federal Circuit Court.
Since the commencement of the proceedings, the wife has been represented by Swaab Attorneys. At the commencement of the proceedings, the husband was represented by Emanuel Refenes Solicitors.
Contracts for the sale of G Street were exchanged by Barre Pty Ltd on or about 23 March 2017.
On 3 April 2017, the wife filed an Amended Initiating Application, which was further amended on 11 April 2017. In the 11 April 2017 Application, the wife sought that the BFA be set aside on a final basis, or in the alternative, if the agreement is not set aside, orders be made for the sale of the D Street and the property situated at G Street. Additionally, she sought superannuation splitting orders and a child support departure order. On an interim basis, the wife sought that the property situated at G Street be sold and the proceeds of the sale of G Street be held in a controlled monies account. Furthermore, on an interim basis, the wife also sought orders for lump sum spousal maintenance and a child support departure order.
On 4 April 2017, the husband filed a Notice of Address for Service, giving notice to the parties and the Court that he was no longer legally represented in the proceedings.
The second respondent, Barre Pty Ltd, was joined to proceedings on 6 April 2017 by his Honour Judge Kemp. On that date, the Court also noted that the husband had agreed that he is to pay the sum of $400.00 per week in child support.
On 13 April 2017, the husband filed a fresh Notice of Address for Service, stating that he was represented by Searle & Associates.
On 3 May 2017, the parties entered into consent orders which provided for the completion of the sale of G Street, with the net proceeds to be held in a Controlled Monies Account in the name of the wife’s solicitors, Swaab Attorneys, with injunctions preventing the husband or Barre Pty Ltd dealing with the proceeds. These orders were made upon the wife giving “the usual undertaking as to damages”. The significance of this will be discussed later in these reasons. The net sale proceeds transferred to the Controlled Monies Account were $779,190.47
On 3 May 2017, the husband filed an Amended Response seeking various orders in respect of parenting, and that the wife’s application for property adjustment orders under Part VIII of the Act be dismissed. From the commencement of the proceedings the husband contended that the Court’s jurisdiction under Part VIII was ousted by the BFA.
On 29 June 2017, the husband filed an Application in a Case, with a supporting Affidavit, seeking variation of the orders made on 3 May 2017 and costs.
The matter was thereafter listed before his Honour Judge Kemp for a directions hearing on 28 July 2017. A number of consent injunctive orders were made against Barre Pty Ltd and other companies associated with the husband, on a without prejudice basis, and with a notation that the husband challenged the jurisdiction of the Court to make such orders. It is not necessary to set out the terms of those orders, except to note they were framed to allow the companies subject to the orders to continue to trade in the ordinary course of business.
The husband and wife were divorced in August 2017 by an order which came into effect in September 2017.
On 22 November 2017, the wife filed an Application in a Case, seeking that the interim injunctive relief against Barre Pty Ltd continue, orders for an audit of the parties’ Self-Managed Superannuation Fund, and the sale of D Street, with proceeds to be held in the Controlled Monies Account and distributions to various persons and entities, including the Australian Tax Office, solicitors and the wife’s mother.
On 5 December 2017, the husband responded to the wife’s Application, seeking that it be dismissed, and that the order requiring the funds from the sale of G Street to be held in the Controlled Monies Account be discharged, with the funds to be transferred to an account held by Barre Pty Ltd.
The matter was listed for interim hearing before Judge Kemp on 7 December 2017, and his Honour delivered judgment on 19 January 2018: Barre & Barre and Anor [2018] FCCA 97. His Honour noted a number of concessions that the parties had made. For the purposes of this judgment, the following are of relevance:
a)The wife was pregnant with Mr O’s child, and was due to give birth in January 2018: at [20] and [71];
b)The husband had conceded that the proceedings constituted a matrimonial cause and, therefore, the Court had the power to make injunctions pursuant to s 114 of the Act: at [50];
c)The parties agreed that the second respondent was the husband’s alter ego: at [53];
d)The husband, at that time, had not complied with full and frank disclosure or orders for the production of documents: at [55], [57] & [60];
e)The Court was not satisfied, that the assets of companies associated with the husband would not be dissipated without independent control of said companies, but the injunctions made on 28 July 2017 were framed so as to enable the companies to trade in the ordinary course of business: at [61] & [62];
f)The husband conceded that, at the time of the interim hearing, there was an outstanding sum of $3,170.51 in child support: at [63];
g)The husband conceded an alcohol and drug problem, which has impacted upon his ability to run his business and companies properly. The husband also confirmed that he had a girlfriend who had three children, and that he had been diagnosed with bipolar disorder, for which he was taking prescribed medications. The husband further conceded that he had a gambling problem, stating that he had “cut back” (not stopped) his gambling: at [64]; and
h)The Court accepted an undertaking by the husband that he would meet the outgoings and mortgage payments as and when they fall due for the D Street: at [93].
Judge Kemp ordered that the husband pay the wife spousal maintenance in the sum of $381.00 per week, that the interim injunctive orders made on 28 July 2017 stand, that the husband in his capacity as the director of Barre Pty Ltd sign documents relating to taxation, and that upon adhering to those orders, the sum of $102,500.00 from the Controlled Monies Account be paid to the husband for the purpose of settling the tax liability owed by Barre Pty Ltd to the Australian Taxation Office resulting from the sale of G Street. The matter was transferred to the Family Court of Australia.
On 20 April 2018, the husband filed a Notice of Address for Service, changing his legal representative from Searle & Associates to Q Lawyers.
On 11 September 2018, the wife filed a Further Amended Initiating Application. The wife altered her position in respect of the BFA, and sought orders that the Court give effect to its terms pursuant to s 90KA of the Act. Importantly, the wife no longer sought any relief under Part VIII of the Act, conceding that the Court’s jurisdiction under Part VIII had been ousted by the BFA, by force of s 71A of the Act.
On 8 October 2018, the husband filed a Notice of Address for Service, changing his legal representative from Q Lawyers to Moylan Family Lawyers.
On 31 October 2018, the husband filed an Amended Response, seeking orders, inter alia, that:
a)the wife pay the husband’s costs pursuant to clause 17(b) of the agreement, and for the parties to attend arbitration pursuant to clause 17(a) of the agreement; and
b)the money held in the Controlled Money Account, less $32,309.93 which the wife claimed for renovations she funded on G Street (which was not conceded by the husband), be released to Barre Pty Ltd.
On 18 December 2018, the husband filed an Application in a Case which he contended was urgent. In that Application, the husband sought the money held in the Controlled Monies Account be released to him and the orders made on 28 July 2017 be discharged.
On 15 January 2019, Ms Haynes, the wife’s mother, filed a Notice of Intervention by Person Entitled to Intervene and an affidavit in support. Further, on 18 January 2019, Ms Gilliam filed a Notice of Intervention by Person Entitled to Intervene and an affidavit in support. Both Ms Haynes and Ms Gilliam were claiming to be creditors of the husband and Barre Pty Ltd.
The wife responded to the husband’s Application in a Case on 18 January 2019. She sought that money be paid to her from the Controlled Monies Account, that the rent already received from D Street be paid to her together with half of any future rental income, that D Street be sold with the net proceeds to be held in a separate Controlled Monies Account, and that the money held in the Controlled Monies Account from the sale of G Street be retained in that account pending further order. In her supporting affidavit, the wife gave evidence that on 21 May 2018, she believed that the husband had moved into a granny flat at D Street, and that he had rented out the main residence.
The husband’s Application in a Case filed 18 December 2018 and the wife’s Response to that Application were listed in the Judicial Duty List on 21 January 2019 and subsequently transferred to Justice Loughnan on that date. The parties and the interveners were all present before the Court. By consent 21 January 2019, directions were made for Ms Gilliam to particularise and provide further evidence in respect of the $317,000 loan she alleged was owed to her by the husband, the parties agreed to attend mediation, with the costs of the mediation to be released from the Controlled Monies Account. The husband’s Application in a Case was to be listed on 6 May 2019.
On 8 April 2019, the de facto proceedings were listed for mention before me. It was at that time I was made aware of these proceedings, although they were not in my docket. I listed the de facto proceedings for hearing on 6 May 2019 to determine the threshold issue, made procedural directions, and noted that these proceedings were also listed on 6 May 2019 and that consideration may be given to consolidating the two proceedings.
On 30 April 2019, Ms Gilliam, as a proposed second intervener, filed an Application in a Case in these proceedings seeking payment to her lawyers of $150,000 from the Controlled Monies Account. This Application was also given a return date of 6 May 2019.
On 2 May 2019, the wife filed an Amended Response to the Application in a Case filed by the husband on 18 December 2018, adding orders seeking to dismiss Ms Gilliam’s Application. On that date she also filed a Sixth Amended Initiating Application, adding a claim to a lump sum child support departure order.
Consequently, before me on 6 May 2019 were the following applications:
a)The Application in a Case filed by the husband on 18 December 2018 for the urgent release of the funds from the controlled monies account and the discharge of orders made by Judge Kemp on 28 July 2017;
b)The wife’s Response to the husband’s Application in a Case filed on 18 January 2020 and amended on 2 May 2020 seeking her share in rent from the former matrimonial home;
c)The Application in a Case filed by Ms Gilliam on 30 April 2019 for the release of $150,000 to her from the Controlled Monies Account; and
d)Ms Gilliam’s substantive Application in the de facto proceedings seeking a declaration pursuant to s 90RD of the Act.
On Friday, 3 May 2019, the husband’s then solicitors, Moylan Family Lawyers, filed a Notice of Ceasing to Act. Consequently, on Monday, 6 May 2019, the husband was self-represented. The wife and the interveners were represented by counsel. As a consequence of the husband’s position, the argument was confined to the question of interim release of funds from the Controlled Monies Account to the husband, the wife and the interveners, the husband’s Application for additional funds from the Controlled Monies Account and the wife’s Application in respect of the rent received, and any future rent, from D Street. As mentioned above, I made orders and delivered my reasons on 8 May 2019: Barre & Barre; Gilliam & Barre [2019] FamCA 315.
At that stage there was some $492,000 in the Controlled Monies Account. By consent, I ordered the release of $25,000 to the husband, the wife, and each of the interveners (Ms Haynes and Ms Gilliam). Additionally, I ordered the release of $20,562.50 to the wife from Controlled Monies Account in respect of money owed to her from rent received from D Street. As a result, the value of the Controlled Monies Account decreased by $120,562.50. Ms Haynes and Ms Gilliam were added as respondents to the proceedings by consent. I restrained all parties from accessing any further funds from the Controlled Monies Account, pending further order.
The matter was then listed before me on 13 August 2019. Due to time constraints it was adjourned to 14 August 2019. On this occasion the husband was again self-represented and raised clause 17(a) of the BFA which required the parties to use arbitration to resolve disputes. The husband pressed for the matter to be determined by arbitration. However, on 26 August 2019, when the matter was next before me for a mention, the husband was represented by counsel, who confirmed that the husband abandoned this position and no longer pressed for the parties to be referred to arbitration.
On 29 August 2019, the husband filed a Notice of Address for Service, disclosing that Mitchell Lawyers were representing him.
The matter was listed on 31 October 2019 for an interim hearing to deal with two Applications in a Case, one filed by Ms Haynes, and the other filed by the husband. I note here that the parties were all represented by counsel. The parties engaged in negotiations.
When the matter returned on 6 November 2019, the parties were again all represented by counsel. The husband was ordered to file a Financial Statement by 15 November 2019, and the matter was listed for interim hearing to deal with the husband’s application for the release of funds from the Controlled Monies Account. The interim hearing of the Applications to release funds from the Controlled Monies Account was listed on 21 November 2019. Additionally, the matter was listed for final hearing on 3 February 2020 for an estimate of two days, and the parties were ordered to attend mediation on 31 January 2020, with the mediation to be funded by the funds held in the Controlled Monies Account in the first instance. For the purpose of hearing the two matters consecutively, a notation was made that the matrimonial matter and the de facto matter be consolidated, and the de facto matter was also listed for final hearing on 5 February 2020 for an estimate of three days.
On 21 November 2019, the parties were again represented. Prior to hearing submissions, the parties took the opportunity to engage in discussions. This time, partial orders were consented to by all the parties in the proceedings. Those orders released $130,000 from the Controlled Monies Account to Ms Haynes, which resulted in the cessation of her involvement in the proceedings. The hearing was therefore confined to dealing with the issue of a release of funds to the husband and Ms Gilliam. I delivered my reasons in respect of those issues on 3 December 2019, and made orders for the sum of $70,000 to be released to the husband, and $50,000 to Ms Gilliam, with the characterisation of each payment to take place at the final hearing: Barre & Barre and Ors [2019] FamCA 907. Consequently, the amount remaining in the Controlled Monies Account was approximately $118,707.
On 27 December 2019, Mitchell Lawyers filed a Notice of Ceasing to Act. As a result the husband became self-represented two months prior to the final hearing. Additionally, on 7 January 2020 Ms Gilliam filed a Notice of Address for Service, indicating that she too had become self-represented.
The matter was listed on 13 January 2020 to consider a number of issues prior to the commencement of trial. Firstly, since the husband was again self-represented, the wife raised the issue that an order might need to be made pursuant to s 102NA of the Act. However, on 13 January 2020 she no longer pressed for that order to be made. Secondly, it came to light that Mr Barre was the subject of a Creditor’s Petition, issued by his previous solicitors, Q Lawyers and listed on 28 January 2020. An order was made granting leave for the wife to file an Application to join Q Lawyers to these proceedings. Ultimately no such Application was made. Thirdly, a notation was made that the parties agreed that the mediation which was ordered on 6 November 2019 be conducted by a particular mediator. Finally, some procedural orders were made granting an extension of time for the husband to file his Trial Affidavit and it was noted that the parties agreed that a valuer, Mr E, be granted access to the D Street, and the property situated at 2 G Street, Suburb B (Folio Identifier …) (“2 G Street”), for the purpose of carrying out a valuation.
The matter was listed for a compliance check on 28 January 2020. On that date it became apparent that the husband had not filed his Trial Affidavit or any Financial Statement, nor had the parties attended any mediation. Further orders were made granting the husband leave to file his affidavit and Financial Statement by close of registry filing on 30 January 2020. The husband complied with this order.
It can be seen from the narrative of the course of the proceedings up to trial that they had been bedevilled by forces of disorder and delay, numerous changes of lawyers on the part of the husband, a persistent failure by him to file his evidence in accordance with directions, including a Financial Statement, and frequent interlocutory Applications.
The Trial
The trial commenced on 3 February 2020. It was disrupted and the Court had considerable difficulty bringing the focus of the Respondents to bear so that the final hearing could be completed.
As the husband was self-represented, at the commencement of the trial I explained the ambit of cross-examination. Cross-examination of the wife by the husband took approximately the first half of the first day. Subsequent to this, the husband and Ms Gilliam were given time to discuss the debt that he owed her, since Ms Gilliam was a party in the matrimonial proceedings only as a creditor of Mr Barre.
Cross-examination of the husband by counsel for the wife commenced in the late afternoon of the first day of the trial, and ended around mid-day on the second day of the trial. On the first day of the trial, the husband generally seemed to able to represent himself, to follow the evidence and questions put to him. At times he was quite argumentative. At approximately 4:00 pm on the first day, counsel for the wife questioned the husband about medication he was taking for a range of conditions, which included, ADHD, Hypermania, and bipolar.
There was no medical evidence from the husband about his medical conditions or the nature and effects of any medication he was taking, apart from answers he had given in cross-examination. To this point in the trial, the husband had not raised his medical conditions as affecting him adversely in any way. He had not sought any adjournment for medical reasons. The wife, of course, had been waiting for a final hearing for several years, and as already pointed out, the delays had been considerable. It was not possible for the Court to form a view about the true position of the husband’s medical condition. This was despite the fact his asserted medical problems had been raised and recorded as early as the judgment of Judge Kemp on 19 January 2018 (above at [36]). Taking into account considerations of procedural fairness to the wife and Ms Gilliam, as well as general case management considerations about the efficient use of Court time and the needs of other litigants, at that stage I formed the view that there was no sufficient reason to delay the final hearing.
Cross-examination of the husband by Ms Gilliam began a few minutes prior to, and ended just a few minutes after, 1.00 pm. Two points should be made here; firstly, at the start of the second day of the hearing, although she was representing herself, Ms Gilliam made an application to be excused after she had finished cross-examining the husband. This was not granted. Secondly, cross-examination of the husband by Ms Gilliam was quite short because, as pointed out earlier, there was no dispute as between the husband and Ms Gilliam that the husband owed her $228,000.
When the matter was called again after lunch, there was an issue with documents that the husband sought to tender, and by the time this was resolved it was the mid-afternoon. Counsel for the wife therefore commenced his oral submissions at approximately 3.26 pm on the second day of the trial. The trial proceeded to a third day.
Counsel for the wife concluded his submissions at approximately 10.30 am on the third day of the trial and was excused so that he could appear before another Court. As part of his submissions, counsel for the wife pointed out he asked the husband twice whether he had ever been told or diagnosed that he had difficulty with processing rational information. The husband was clear he had not.
Prior to commencing his oral submissions, the husband sought a brief adjournment because he felt unwell. During the adjournment, the Family Advocacy and Support Service (FASS) Support Worker notified my associate that the husband had not taken one of his prescribed medications.
When the matter was called again in the mid-morning, the husband was visibly distraught and he informed the Court that he had not taken one of his medications, Orlanzapin. He went on to inform the Court that he had not taken this medication for the past several days because it is a strong medication that made him sleepy and drowsy. He submitted that if he had taken the medication he feared that he would not have been able to properly conduct himself at the trial.
The solicitor for the wife helpfully suggested that instead of requiring the husband and Ms Gilliam to make submissions orally, they instead provide the Court with written submissions. I adjourned the Court briefly again, and when the matter resumed, I heard from the FASS Support person, without objection.
It was at this point, in light of the husband’s apparent condition, that I formed the view that the trial could not continue, and therefore could not conclude in the time allocated. The proceedings were adjourned to 7 February 2020 to allow the husband to receive any necessary medical attention, and to make directions for the further conduct of the proceedings. It should be noted that prior to the matter adjourning, Ms Gilliam agreed that the de facto proceedings, which were listed for three days to commence on 5 February 2020, could not commence on that day. The aspiration of the Court to deal with both matters consecutively, and in a consolidated manner, was confounded.
On 7 February 2020, all the parties attended Court, and the husband produced a medical certificate from his doctor which stated he was unfit for Court proceedings for a period of two weeks; Exhibit 1. The medical certificate did not shed much light on the husband’s medical condition.
The solicitor for the wife repeated the submissions that the matter should proceed by way of written submissions, since this was a process which was more likely to cause lower levels of anxiety in the husband. However, he also submitted that the two week period referred to in the doctor’s certificate is not a threshold, and that it was imperative for the proceedings to conclude by 3 March 2020, the date on which the husband’s bankruptcy proceedings were before the Federal Circuit Court. Ms Gilliam agreed that the matter should continue by way of written submissions, however, she submitted that the two week period should be granted to the husband. She submitted that she did not want the matter to be appealed due to this issue. The husband also agreed that the matter should proceed by way of written submissions, and asked the Court for the two week period.
The husband did not seek an adjournment or make any submission or Application for the filing of any further evidence on 7 February 2020.
The Court made orders for the husband and Ms Gilliam to file and serve their written submissions by 19 February 2020, and for the wife to file and serve any written submissions in reply by 26 February 2020. I note again that Ms Gilliam made an oral application to have funds released to her from the Controlled Monies Account, however, the wife did not consent to such an order being made, and the order was not made at that time.
After the Trial
On 11 February 2020, my chambers received a letter from Ms Gilliam, by way of email, that was marked “urgent”. In that letter, Ms Gilliam claimed that she had not been served with the applicant wife’s exhibits as at 5 February 2020 and that she had only become aware that submissions are the final phase of trial after attending the duty solicitor at Court the afternoon of 8 February. No reason was given why she had not consulted the duty solicitor, or other legal advisor, on an earlier occasion. She raised as an issue the fact that she had no opportunity to cross-examine the wife nor review the wife’s exhibits. None of these issues had been raised with the Court either before or during the trial or otherwise until this point in time.
The matter was listed for mention on 12 February 2020. The Court made orders for the wife to provide a copy of the exhibits to her Trial Affidavit to Ms Gilliam by 10.00 am on 14 February 2020 and the timetable for written submissions made on 7 February 2020 was vacated. The matter was adjourned again for mention to 19 February 2020, noting that on the adjourned date Ms Gilliam was to advise the Court as to whether she would press her application to cross-examine the wife, and if so, what the nature of the questions would be and how they were relevant.
At the mention on 19 February 2020, Ms Gilliam made some confusing submissions, which I understood to be as follows:
a)That she wanted to cross-examine the wife in relation to the undertaking as to damages, given by the wife in support of her Application for an injunction, referred to above at [29], and admissions given in respect of the injunction, which I note were made well before she was a party to these proceedings;
b)That the BFA had negatively impacted her;
c)That she made contributions to the matrimonial pool by loaning the husband money;
Ms Gilliam’s application to cross-examine the wife was refused. Mr Barre took the opportunity to make an oral application for leave of the Court to file further evidence in support of his case. Bearing in mind the numerous extensions of time given to Mr Barre to file his evidence, and the waste of time at the final hearing, that application was also refused.
Orders were made for a new timetable for the filing of written submissions, which required the husband and Ms Gilliam to file and serve their written submissions by no later than close of registry filing on 28 February 2020, and for the wife to file any written submissions in reply by no later than close of registry filing on 2 March 2020.
On 27 February 2020, at 2.11 pm, my Chambers received an email from a Ms W Barre. This person claimed to be Mr Barre’s mother, and the email stated that the husband, Mr Barre, had been admitted to the BB Hospital. This email was only sent to my Chambers and did not carbon copy the other parties in the proceedings.
On 28 February 2020, at 8.40 am, my Chambers received a further email from W Barre. This time the email contained three attachments:
a)Submission 1st draft final CSA Departure in pdf format;
b)Submission 1st draft final word format; and
c)Notice of disputing facts.
The email noted that Mr Barre was in hospital but he had managed to complete the attached documents prior to his admission. Again, I note that this email was only sent to my Chambers and did not carbon copy the other parties in the proceedings.
On 28 February 2020, at 12.36 pm, my Chambers replied, with a carbon copy to the other parties, to Ms W Barre pointing out:
Unfortunately, as you are not a party to the proceedings, the Court is not in a position to liaise or communicate with you in relation to this matter. Further, any correspondence with the Court must include the other parties to the proceedings, which we have carbon copied in this correspondence.
We further note that any application made to the Court must be made in accordance with the Family Law Rules 2004 (Cth).
At 1.17 pm on that date, Ms W Barre sent a medical certificate for Mr Barre which stating he was unable to attend work from 26 February 2020 to 28 February 2020. This email was only sent to Chambers.
On 28 February 2020, at 2.25 pm, my chambers received an email from Registrar McGrath forwarding an email sent to the Sydney Case Coordinators by Ms Gilliam. The email contained an “urgent letter” in which Ms Gilliam contended that due to her financial circumstances and a termination notice which required her and her children to leave her rented accommodation on 16 March 2020 she was unable to file her written submissions on time. She therefore sought an extension of two days to file her written submissions, which were due by 4.30 pm on 28 February 2020.
At 4.37 pm on the same date, Mr Barre forwarded the same email sent by Ms W Barre earlier that date which contained the three attachments above. There was nothing written in the body of the email. All the parties to the proceedings were carbon copied in that email.
On 29 February 2020, counsel for the wife sent the wife’s submissions in reply to my Chambers.
The Sydney Registry received two emails from Mr Barre on 2 March 2020. One contained a photo of his “personal application for voluntary admission to a Mental Health Facility” dated 26 February 2020 and the other contained a photo of a medical certificate, by a Dr CC stating that Mr Barre was an inpatient at BB Hospital from 26 February 2020 until 29 February 2020. The letter is dated 29 February 2020.
In the first email, received at 2.06 pm, Mr Barre sought an extension of three days to submit his written submissions by Thursday 5 March 2020. He stated that he had been unwell and therefore unable to send the submissions on time.
In the second email at 3.09 pm, Mr Barre emailed my Chambers a document entitled “Submission 1st draft final”, emphasising that these were Part A of his submissions and that Part B would be submitted on the 5 February 2020. Mr Barre later corrected this with a further email sent on 4 March 2020, stating that he meant to type “March” and not “February” in his previous email. He stated that this was the document his mother had tried to submit on his behalf on 28 February 2020.
On 3 March 2020, Ms Gilliam filed written submissions.
On 5 March 2020, the Sydney Case Coordinators forwarded an email that Ms Gilliam had sent to their inbox. The email had three attachments:
a)Short Minute of Orders
b)Urgent letter dated 28 February 2020
c)Letter dated 13 March 2019
In summary, Ms Gilliam was seeking consent to her receiving $45,000 from the Controlled Monies Account.
On 11, 12 and 19 March 2020, the husband filed three separate written submissions.
The matter was listed before Senior Registrar Campbell on 23 March 2020, to deal with Ms Gilliam’s urgent letter. By then, the restrictions created in response to the COVID-19 pandemic were imposing limitations upon the Court’s operational capacity. On that occasion, Senior Registrar Campbell noted that there was no Application filed by Ms Gilliam and that judgment against the final property orders had been reserved. Consequently, Senior Registrar Campbell adjourned the matter to a date to be fixed.
On 6 April 2020, Ms Gilliam filed an Application in a Case, an Affidavit in support, and a cover letter for urgency. In that Application, Ms Gilliam sought orders for:
a)The release of $45,000 to her from the funds held in the Controlled Monies Account;
b)For the classification of such funds to be reserved subject to final judgment; and
c)That the requirements to comply with the rules for filing and serving her Application be dispensed with.
On 17 April 2020, orders were made in Chambers to list Ms Gilliam’s Application in a Case filed 6 April 2020 before me on 7 May 2020, and for the Application to be served upon all the parties by 4.00 pm on 1 May 2020. It was noted that the matter would only be listed at 10.00 am on 7 May 2020 for mention, however, orders would be made to list the matter for interim hearing if appropriate.
On 19 April 2020, Barre Pty Ltd filed an Application in a Case, an Affidavit in support, and a cover letter for urgency, seeking orders in the following terms:
a)That the wife instruct her lawyer to release $45,000 from the Controlled Monies Account to Ms Gilliam within 2 working days;
b)That the remaining balance be released to Barre Pty Ltd within 2 working days; and
c)That the wife instruct her lawyers not to contact or share information from either the matrimonial or de facto proceedings with any person that are not party to these proceedings, and in particular, Q Lawyers and Mr V.
This Application was also listed before me on 7 May 2020.
On 7 May 2020, I made orders for the wife to file and serve a Response and an Affidavit to the two Applications by no later than close of registry filing on 14 May 2020. The wife filed a Response to each application on 14 May 2020, seeking in both instances that the Application be dismissed and an order for costs against the Applicant.
On 12 May 2020, Q Lawyers sent an email to Chambers and attached a letter of the same date which objected to the Applications of Barre Pty Ltd and Ms Gilliam seeking release of monies from the Controlled Monies Account. They stated that their firm had a creditor’s petition against the husband listed “next before the Federal Circuit Court of Australia on 21 May 2020 owing a debt including interest and costs (at scale) to date of $102,526.58”. Q Lawyers also expressed an intention to intervene “in so far as any such orders made by the Court in respect of the Applications may effect this firm’s ability to recover its debt from the Husband”. The intervention was said to be “pursuant to s79(10)(a) of the Family Law Act 1975 (Cth) and/or r.6.02 of the Family Law Rules 2004 (Cth)” to seek an asset preservation order preventing the husband or Ms Gilliam from accessing the funds held in the controlled monies account up to the sum of $102,526.58.
On 15 May 2020, orders were made in Chambers listing Mr Barre and Ms Gilliam’s Applications for mention on 20 May 2020, noting that Q Lawyers may attend such listing.
On 20 May 2020, orders were made for the release of $10,000 of monies held in the controlled monies account within 48 hours to Ms Gilliam with reasons for judgment to be provided at a later date. The Applications of Ms Gilliam, Mr Barre and Q Lawyers were listed for interim hearing on 2 June 2020.
Q Lawyers filed their Application in a Case on 22 May 2020 seeking a range of orders including leave to become a party to these proceedings and for the parties to sign all documents and things to cause to be paid to Q Lawyers the sum of $102,616.88 plus interest accruing and costs from the date of final orders being made in the Federal Circuit Court of Australia.
On 27 May 2020, Q Lawyers filed a Notice of Address for Service.
On 29 May 2020, Ms Gilliam filed a Response to Q Lawyers’ Application seeking a suite of orders which, in summary, sought the Application be dismissed, the wife and Q Lawyers pay her costs and/or damages in the amount of $10,000, and that she receive $35,000 from the controlled monies account.
On 1 June 2020, the wife filed a Response to Q Lawyers’ Application stating “[t]hat [she] neither consents nor opposes the Orders sought in the Application in a Case filed 22 May 2020”. On the same day, the husband filed an affidavit with numerous annexures, the relevance of which was not obvious. He made no Application to reopen. I have not had regard to this material.
Mr Barre also emailed Chambers, attaching his Case Outline in respect of the interim hearing on 4 June 2020 which sought orders, inter alia, in summary, that:
a)Swaab Attorneys release $35,000 from the Controlled Monies Account to Ms Gilliam within 48 hours;
b)Q Lawyers be joined to the proceedings with any pending proceedings against him to be transferred to this Court;
c)The wife pay the arrears to the mortgage on the D Street; and
d)That leave be granted to join D Street Construction to the proceedings as a shareholder of Barre Pty Ltd.
Due to changes in the judicial calendar, the interim hearing took place on 4 June 2020 and judgment was reserved.
On 9 June 2020, with respect to those Applications, judgment was delivered (see Barre & Barre and Ors [2020] FamCA 455). In summary, orders were made for the balance of the Controlled Monies Account to be paid to Barre Pty Ltd, for Barre Pty Ltd to then pay $35,000 to Ms Gilliam and for the Applications the subject of the judgment to be otherwise dismissed.
Unfortunately, even this did not stabilise the shifting sands of these proceedings.
On 9 July 2020, a Notice of Address was filed on behalf of Nick Combis as Trustee in Bankruptcy for the husband (“Trustee”). The husband had been made bankrupt on his own petition, I assume in accordance with s 55(4A) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act’). The Trustee has been made a party to the proceedings.
There was no evidence placed before the Court about the husband’s bankruptcy. The extent of his creditors, secured or unsecured, is unknown, as is the range and size of the debts provable in his bankruptcy, and whether all his assets and financial resources have been identified; all the Court can infer is that the husband is presently insolvent.
The proceedings were listed for mention on 14 August 2020, and on that day the Trustee advised that he did not propose to agitate any matter for debate pending the delivery of judgment in these proceedings.
The de facto proceedings were listed on 1 October 2020 for final hearing. On 2 September 2020, Ms Gilliam filed an amended Application in a Case in these proceedings seeking an extravagant range orders, many of which appeared to lack any jurisdictional basis, including orders restraining dealings with a property held in a Self-Managed Superannuation Fund, discussed later in these reasons. This remains to be dealt with. The de facto proceedings, which were once intended to be dealt with consecutively with these proceedings, have also been adjourned part-heard.
It can be seen that since the trial in February 2020, these proceedings have been beset by constant interlocutory applications and problems relating to the necessity to afford the husband and Ms Gilliam procedural fairness as self-represented litigants. The amount of Court time required to manage the numerous Applications which have been made became excessive and caused considerable delay in the finalisation of judgment.
Further delay was caused by the need for the Court to receive additional submissions from the parties on a range of important issues about which nothing had been said in argument. On 3 November 2020, an email was sent to the parties specifying a number of matters upon which the Court sought additional assistance, as follows:
a)Whether the husband’s bankruptcy affected the jurisdiction of this Court and the relief which may be granted, in particular whether proceedings under Part VIIIA of the the Act are “property settlement proceedings” for the purposes of s 35 of the the Bankruptcy Act;
b)Whether s 86 of the Bankruptcy Act is applicable;
c)Whether an undertaking given to the Court by the husband on 19 January 2018 to pay mortgage instalments secured against the D Street can be enforced by an order for the payment of money by the husband, and if so whether such order should be made in light of the husband’s bankruptcy;
d)Whether any type of Child Support Departure order should be made against the husband while he is bankrupt and if so whether the husband’s bankruptcy affects the type of to be made;
e)Whether the Court has jurisdiction to make a superannuation splitting order in proceedings under Part VIIIA of the Act, in particular taking account of the terms of s 90XS of the Act;
f)Whether there is evidence which establishes who or what entity is or are trustee(s) of the Barre Family Super Fund; and
g)Whether the Court can and should make orders compelling the husband and the wife to take steps as directors of the trustee of the Barre Family Super Fund.
On 18 November 2020, the matter was listed for mention to hear submissions from the parties concerning a timetable for further submission, and orders were eventually made on that day. Ms Gilliam filed her submissions slightly late on 24 December 2020. Judgment became reserved from that date.
Issues in dispute
As the proceedings evolved and as disclosed by the evidence and the submissions of the parties, up to October 2020, the main issues included:
a)Implementation and enforcement of the BFA between the wife and husband, requiring consideration of the provisions of Part VIIIA and the certainty of the terms of the BFA. The enforcement of the terms of the BFA is not straightforward and the submissions of the parties did not address a number of problematic questions, as the following reasons will demonstrate;
b)Whether the husband’s bankruptcy affected the jurisdiction of this Court;
c)Whether an undertaking given to the Court by the husband to pay the mortgage secured against the D Street can be enforced by an order for the payment of money by the husband;
d)Whether any type of Child Support Departure order should be made against the husband while he is bankrupt, and if so whether such order should be by way of lump sum or alternatively as non-periodic payments of child support in respect of fees associated with the children’s remainder of schooling and periodic payments of Child Support for two years;
e)Whether the Court has jurisdiction to make a superannuation splitting order in the circumstances of this case; and
f)Whether the Court can and should make orders compelling the husband and the wife to take steps as directors of their Self-Managed Superannuation Fund.
I note here that both the wife and the husband agree that C Street, and D Street should be sold with consequential distributions to the parties to implement the BFA. The parties disagree about the details of distributions.
I also record here that I accept the submission of the wife that s 86 of the Bankruptcy Act has no application in the circumstances of this case to dealings between the wife and the husband. There is no evidence that the wife is claiming to prove a debt in the husband’s bankruptcy.
Enforcement of binding financial agreements
The orders proposed by the wife and the husband seek enforcement of the terms of the BFA under Part VIIIA of the Act. It was accepted that the provisions of Part VIII of the Act did not apply by reason of s 71A of the Act.
Two aspects of s 71A should be emphasised. First, the effect of s 71A(1) is that the jurisdiction of the Court under Part VIII is ousted in respect of financial matters or resources covered by a binding financial agreement, while property and financial resources not dealt with by such an agreement remain to be determined under Part VIII: Kostres & Kostres (2009) FLC 93-420; (2009) 42 Fam LR 336; [2009] FamCAFC 222 (“Kostres”) at [64]. “Financial matters” in relation to parties to a marriage are defined broadly in s 4 as “the property of those parties or of either of them”. There is no separate definition of “financial resources”, although it is a phrase well known in the jurisprudence under Part VIII, being used, for example, in s 75(2) of the Act. No contention was raised by any party in this matter that there were any financial matters or resources of the parties to which the BFA did not apply, so as to remain to be dealt with under s 79 of Part VIII. Before the Court can simply accept this position as correct, it is necessary to find the relevant financial agreement is binding and that it is “valid, enforceable and effective” in accordance with s 90KA(1). As will be explained in more detail below, in my view, this requires the Court to form a view that the BFA is sufficiently certain to be enforced.
Secondly, s 71A only operates in respect of financial agreements which are binding. All that is required for a financial agreement to be binding is that the provisions of s 90G are complied with: ASIC & Rich and Anor (2003) FLC 93-171; [2003] FamCA 1114 (“ASIC & Rich”) at [73].
Relevantly, ss 90G(1) to (1C) provide:
(1) Subject to subsection (1A), a financial agreement is binding on the parties to the agreement if, and only if:
(a) the agreement is signed by all parties; and
(b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and
(c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and
(ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and
(d) the agreement has not been terminated and has not been set aside by a court.
Note: For the manner in which the contents of a financial agreement may be proved, see section 48 of the Evidence Act 1995 (Cth).
(1A) A financial agreement is binding on the parties to the agreement if:
(a) the agreement is signed by all parties; and
(b) one or more of paragraphs (1)(b), (c) and (ca) are not satisfied in relation to the agreement; and
(c) a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and
(d) the court makes an order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and
(e) the agreement has not been terminated and has not been set aside by a court.
(1B) For the purposes of paragraph (1A)(d), a court may make an order declaring that a financial agreement is binding on the parties to the agreement, upon application (the enforcement application ) by a spouse party seeking to enforce the agreement.
(1C) To avoid doubt, section 90KA applies in relation to the enforcement application.
The parties took the common approach that the BFA is a financial agreement which is binding. No particular submissions were made in support of this position. I accept it is correct. Section 90G was amended in 2003 and 2009. The date of the BFA falls between these amendments. It is not necessary to set out those amendments in detail. Their effect has been discussed and explained by the Full Court in Wallace & Stelzer and Anor (2013) 51 FamLR 115; [2013] FamCAFC 199 (“Wallace”). In Wallace at [72] the Full Court held that a financial agreement falling between the 2003 and the 2009 amendments would be binding if it was signed by both parties, had not been terminated or set aside, and met the requirement that each party received independent legal advice from a legal practitioner as to “the effect of the agreement on the rights of that party” and “the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement.” I accept the BFA meets this criteria. It is signed by both parties and has not been set aside. Attached to the BFA are certificates showing each party received the requisite legal advice. Reliance on s 90G(1A) is not necessary.
Neither the wife nor the husband, the only parties to the BFA, sought to set it aside. However, I note here that Ms Gilliam argued that the BFA should be set aside. She did not identify the jurisdictional basis for such an order to be made on her Application. She is not a party to the BFA.
Section 90K(1) sets a range of circumstances in which the Court can set aside a financial agreement. As O’Reilly J pointed out in Costello & Condi [2012] FamCA 355 (“Costello”) at [129] - [130], s 90K(1) does not specify who may be an applicant under s 90K(1), nor does any other provision of the Act; however, the category of proper applicants can be deduced by necessary implication from the terms of s 90K(1).
With respect to Ms Gilliam, the possibly relevant subparagraphs of s 90K(1) are s 90K(1)(aa), which refers to creditors; and (ab) which refers to de facto partners. Paragraph (eab) of the definition of “matrimonial cause” in subsection 4(1) includes: “third party proceedings (as defined in section 4A) to set aside a financial agreement.” Section 4A defines “third party proceedings” to mean proceedings between a party to a financial agreement and, relevantly, a creditor or de facto partner, to set aside a financial agreement on the ground specified in paragraph 90K(1)(aa) or (ab). Paragraph 90K(1)(aa) is limited to situations where a party to the agreement entered into the agreement for the purpose, or for purposes that included the purpose, of defrauding or defeating a creditor. I note also that paragraph 90K(1)(ab) is limited to the situation in which the financial agreement was entered into for the purpose of defeating the interests of a de facto partner. In the context of a summary dismissal application, in Costello at [128] O’Reilly J expressed a tentative view, for example, that if a creditor is able to show a case under s 90K(1)(aa), it would be open to him or her at a trial also to argue that the s 90G conditions for validity of a financial agreement are not met.
Neither paragraph s 90K(1)(aa), nor (ab) could sensibly be argued to apply to Ms Gilliam. As already noted, the BFA was entered into on 31 August 2005. Ms Gilliam contends that she enjoyed a de facto relationship with the husband from June 2016 to December 2018. This awaits determination. But it is beyond argument that the BFA was entered into many years before Ms Gilliam became a creditor of the husband, and years before the alleged de facto relationship upon which she relies arose; neither the wife nor the husband could have even had her in contemplation. There is no basis to conclude the BFA was entered into for any purpose directed to Ms Gilliam, as creditor or alleged de facto partner. Furthermore, paragraph 90K(1)(ab) is predicated upon the existence of a de facto relationship. Prior to determination of that question, it can give the Court no jurisdiction to set aside the BFA on Ms Gilliam’s application as an alleged de facto partner: see Norton & Locke (2013) 50 Fam LR 517; [2013] FamCAFC 202. Section 90K(1) therefore provides no basis upon which Ms Gilliam could set aside the BFA.
Apart from s 90K(1), general law principles such as duress, undue influence, unconscionable conduct, or misrepresentation may operate to provide a basis set aside a binding financial agreement: see, for example, Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 (“Thorne”). The principles of repudiation and rescission may apply in relation to binding financial agreements: Parke & Parke [2015] FCCA 1692; Donald & Forsyth [2015] FamCAFC 72. The High Court left unresolved the extent to which the statutory prohibition against unconscionable conduct in s 90K(1)(e) might differ, if at all, from the equitable doctrine concerning unconscionable conduct: Thorne at [23]. These principles apply between parties to a contract. In my view, Ms Gilliam, who is not a party to the BFA, cannot take the benefit of any of them to seek to set aside the BFA. No other party relies upon them. I reject Ms Gilliam’s standing to set aside the BFA and find that there would be no basis for doing so even if she had standing.
The central argument was cast in terms of reliance on s 90KA of the Act. The terms of s 90KA are as follows:
Validity, enforceability and effect of financial agreements and termination agreements
The question whether a financial agreement or a termination agreement is valid, enforceable or effective is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts, and, in proceedings relating to such an agreement, the court:
(a) subject to paragraph (b), has the same powers, may grant the same remedies and must have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction; and
(b) has power to make an order for the payment, by a party to the agreement to another party to the agreement, of interest on an amount payable under the agreement, from the time when the amount became or becomes due and payable, at a rate not exceeding the rate prescribed by the applicable Rules of Court; and
(c) in addition to, or instead of, making an order or orders under paragraph (a) or (b), may order that the agreement, or a specified part of the agreement, be enforced as if it were an order of the court.
Section 90KA is directed to the law applicable to enable the Court to determine whether a financial agreement is “valid, enforceable or effective”. It applies in relation to any financial agreement, as defined in the Act, not only a binding financial agreement. The question of whether a financial agreement is valid and effective is different to the question whether it is binding. As already pointed out, to be binding a financial agreement needs only satisfy s 90G. However, if a financial agreement is held to be invalid or unenforceable and is set aside, it obviously cannot be binding.
The words “valid, enforceable or effective” are central to s 90KA. Enforcement is predicated upon validity. To this extent ss 90K and 90KA can address similar questions of validity. But again it is well settled that general contractual principles are applicable to the question of enforcement raised in connection with s 90KA. Cronin J in Ruane & Backman-Ruane and Anor [2009] FamCA 1101 (“Ruane & Backman-Ruane”) at [53] drew a distinction between the principles applicable to validity and those applicable to enforcement, saying “the provisions of contract law referred to in s 90KA apply to validity and the principles of equity apply to the issues of enforcement”. At first instance in Senior & Anderson [2010] FamCA 601 (“Senior”) (at [108] - [109]) Young J held:
108. Section 90KA addresses the issue of the validity, enforceability and effect of a financial agreement by a Court acting under the principles of law and equity relevant to contract law. Whilst the introductory words to that section record ‘validity, enforceability and effect’ the section itself uses the words ‘valid, enforceable or effective’, thus empowering the Court to collectively but also individually consider and act upon at each of those circumstances but within its primary enforcement purpose.
109. The word ‘effective’ is defined in the Oxford Dictionary of English (2nd Edition Revised) to mean ‘successful in producing a desired or intended result’. The Macquarie Dictionary (5th Edition) defines ‘effective’ as an adjective to mean ‘serving to effect the purpose; producing the intended or expected result’. That purpose or intended result was a binding agreement in the terms and manner negotiated.
C Street
That the Wife do all acts and things and sign all documents necessary to sell the C Street property at the best price reasonably attainable and for the Wife to cause the sale proceeds to be paid in the following manner and priority:
a)In payment of the Agent's commission and Auction expenses (if any) due on the sale;
b)In payment of the legal costs and disbursements of the sale;
c)In payment of the amount required to discharge the C Street Mortgage;
d)In payment of capital gains tax payable by the Wife on the sale of C Street;
e)In payment of $242,647 to the Wife (pursuant to Orders 2(d), (e), (f), (g), (h) and (i) herein);
f)In payment of the balance remaining to be divided equally between the Husband and the Wife.
D Street
That within 30 days of the date of these Orders the Husband do all acts and things and sign all documents necessary to:
a)Give notice to the Tenant/Occupant ("Tenant") of D Street as to the termination of any Lease and ensure the Tenant vacates D Street as soon as practicable thereafter;
b)Vacate the premises;
c)Appoint the Wife as the Husband's Trustee for the sale of D Street and the Wife will cause such appointment to be served upon the Conveyancer and Agent.
That the Husband and the Wife do all acts and things and sign all documents necessary to sell D Street and in particular to:
a)Instruct Swaab to prepare a Contract for Sale of Land for D Street ("the Conveyancer");
b)List D Street with a Real Estate Agent ("the Agent") for the sale of D Street by public Auction at the earliest possible date;
c)Execute all documents requested by the Agent for the sale of D Street, subject to Order 4(c);
d)Agree on the reserve price, but in default of agreement, by a Valuer appointed by the President of the NSW Division of the Australian Property Institute pursuant to clause 4.7(a) of the BFA;
e)Request the Agent to appoint an Auctioneer to Auction D Street;
f)Attend the Auction sale and negotiate with the highest bidder in the event that the reserve price is not reached;
g)Execute a Contract for Sale of Land in respect of D Street, subject to Order 4(c);
h)Co-operate in every way with the Agent in relation to the Auction and sale of D Street;
i)Execute all other documents necessary to complete the sale of D Street, subject to Order 4(c).
That from the proceeds of sale of D Street, the Husband and Wife do all acts and things and sign all documents necessary to cause the proceeds of sale to be paid in the following manner and priority:
a)In payment of the Agent's commission and Auction expenses (if any) due on the sale;
b)In payment of the legal costs and disbursements of the sale;
c)In payment of the amount required to discharge any Mortgage registered on the title to D Street;
d)In payment to the Wife in the sum of $144,813 pursuant to the adjustments set out at Orders 2(a), (b), (c) and (j) herein;
e)In payment of one half of the balance to the Wife;
f)In payment to the Wife of the sum representing arrears in child support due by the Husband to the Wife as at the date of these Orders, noting that as at 19 December 2019 that sum was $10,276;
g)In payment to the Wife of the arrears due as at the date of these Orders in respect of D Street Mortgage noting that the sum due as at 16 December 2019 was $20,945.65;
h)In payment to the Barre Family Superannuation Fund ("the Super Fund") in the sum of $28,890 pursuant to the Auditor/Actuary Contravention Report dated 9 May 2018;
i)In payment of an additional $19,000 to the Super Fund for withdrawals by the Husband on 9 February, 9 May, 28 May and 5 June 2018;
j)In payment into the Mortgage in favour of R Bank secured against real property situate at and known as 2 G Street Road, Suburb B ("2 G Street") of arrears due in respect of the Mortgage as at the date of these Orders ("2 G Street Mortgage");
k)In payment of an amount the equivalent of 6 months Mortgage repayments due in respect of the 2 G Street Mortgage noting such period is intended to cover repayments due as and from the date of the Orders until settlement of the sale of 2 G Street by the Super Fund;
l)In payment of an amount the equivalent of 6 months of repayments due in respect of D Street Mortgage as and from the date of these Orders such sum to be applied towards Mortgage repayments due pending settlement of the sale of the D Street;
m)In payment to the Wife in the sum of $523,348 pursuant to Order 29 herein pursuant to sections 117 and 124 of the Child Support (Assessment) Act 1989 payable as a lump sum in lieu of periodic payments of child support and non-periodical payments;
n)In payment to the Wife costs of and incidental to the implementation of Order 4 and 9 herein on an indemnity basis;
o)In payment of the balance to the Husband.
CMA
That within 14 days of the date of these Orders the Husband and the Wife do all acts and things and sign all documents necessary to direct and instruct the Managing Partner of Swaab to pay from the Controlled Monies Account held by that Firm with the R Bank in the name of Swaab ITF the Husband and the Wife ("the CMA") to be paid in the following manner and priority:
a)Principal and interest due to the Q Lawyers due as at the date of these Orders pursuant to a Creditor's Petition filed in the Federal Circuit Court of Australia in proceedings SYG3005 of 2019 dated 18 November 2019 in the sum of $84,125.13 together with interest accruing and costs up to and including payment of the said debt to Q Lawyers;
b)That the balance remaining in the CMA after the discharge of the debt due to Q Lawyers be paid either:
(i)To the Husband or Barre Pty Ltd Property Pty Limited, as he may direct; or,
(ii)To be the subject of Orders in proceedings SYC342/2019 ("the 2019 proceedings").
Superannuation
That the Husband and the Wife in their capacity as Directors of Barre Super Fund Pty Limited, the Trustee of the Barre Family Super Fund ("the Fund") do all acts and things and sign all documents necessary to sell real property situate at and known as 2 G Street, Suburb B (Folio Identifier …) ("2 G Street"), and in particular:
a)Cause the Wife to be appointed as Trustee for the sale of 2 G Street and the Wife will cause such appointment to be served upon the Conveyancer and the Agent;
b)Instruct Swaab to prepare a Contract for Sale of Land for 2 G Street;
c)List 2 G Street with a Real Estate Agent ("the Agent") for the sale of 2 G Street by public Auction at the earliest possible date;
d)Execute all documents requested by the Agent and the Solicitor for the sale of 2 G Street, subject to Order 8(a);
e)Agree on the reserve price, but in default of agreement, by a Valuer appointed by the President of the NSW Division of the Australian Property Institute pursuant to clause 4.7(a) of the BFA;
f)Request the Agent to appoint an Auctioneer to Auction 2 G Street;
g)Attend the Auction sale and negotiate with the highest bidder in the event that the reserve price is not reached;
h)Execute a Contract for the Sale of Land in respect of 2 G Street, subject to Order 8(a);
i)Co-operate in every way with the Agent in relation to the Auction and sale of 2 G Street;
j)Execute all other documents necessary to complete the sale of 2 G Street, subject to Order 8(a);
That within 30 days of the date of these Orders the Husband do all things and sign all documents necessary to:
a)Terminate any Lease into which the Husband has entered or into which he has committed the Super Fund;
b)Vacate 2 G Street and/or otherwise ensure that the Agent is provided with vacant possession.
That from the proceeds of sale of 2 G Street, the Husband and the Wife do all acts and things and sign all documents necessary to cause the proceeds of sale to be paid in the following manner and priority:
a)In payment of the Agent's commission and Auction expenses (if any) due on the sale;
b)In payment of legal costs and disbursements of the sale;
c)In payment of the amount required to discharge any Mortgage registered on the title to 2 G Street;
d)In payment to a Superannuation Fund nominated by the Wife the sum of $23,886;
e)The balance to be deposited in an Account in the name of the Fund to be operated by the Wife in her capacity as the Husband's Trustee to be allocated in accordance with Order 12 herein.
That the Husband and the Wife instruct T Chartered Accountants ("the Accountants") to calculate the following in respect of the Fund:
a)The amounts transferred out of the Fund's Accounts since 1 July 2015 to an account in the Husband's personal name and not repaid by or on behalf of the Husband as at the date of these Orders ("the misappropriated amount");
b)The fines and penalties incurred by the Fund (if any) as a consequence of the Husband's transfer of the misappropriated amount ("the Super penalties").
That pursuant to clauses 1.1(g) and 4.11(b) of the BFA, that the Wife be allocated out of the Husband's interest in the Fund a base amount in accordance with the following formula
$23,886 + (combined entitlement of the Husband and the Wife in the Fund valued as at 31 March 2020 less $23,886) x 50%
That in accordance with section 90MT(1)(a) of the Family Law Act 1975, whenever the Trustees for the Fund make a splittable payment within the meaning of section 90ME of the Act to the Husband from his interest in the Fund, the Wife is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law Act (Superannuation) Regulations 2001 using the base amount specified in Order 12 and there is a corresponding reduction in the entitlement the Husband would be entitled to receive but for this Order.
That Order 12 have effect from the operative time, and the operative time is 31 March 2020.
That in order to give effect to Order 12, within 30 days of the operative time the Husband and the Wife in their roles as Trustees and Members of the Fund shall do all acts and things and sign all documents necessary to:
c)Instruct an accountant to value the Fund so as to arrive at the value of each party's entitlement as at 31 March 2020;
d)Cause the Trustee for the Fund to transfer assets and cash to the Wife's Member Account so that the Wife receives the base amount calculated in accordance with the Orders.
That for the purposes of calculating the value of each party's entitlement as at 31 March 2020 pursuant to Order 12, the Husband indemnify the Wife in relation to the following liabilities relating to the Fund:
a)The misappropriated amount pursuant Order 11(a);
b)The fines and Super penalties pursuant to Order 11(b);
c)Legal and accounting fees and costs incurred by the Fund of and incidental to the implementation of these Orders.
That within 7 days thereafter, the Husband and the Wife in their roles as Trustees of the Fund do all acts and things and sign all documents necessary to cause a meeting of the Fund to be held with the purpose of that meeting to authorise the transfer of the whole of the Wife's interest (including any interest accrued) in the Fund to be rolled over into another Superannuation Fund nominated by the Wife ("the Wife's new Superannuation Fund") in assets and cash provided that the Fund meets the reasonable costs of preparation and completion of the documents necessary for the Fund to comply with this Order and the reasonable costs associated with setting up the Wife's new Superannuation Fund and the advice associated with setting up such Fund to be apportioned equally between the Husband and the Wife's respective Superannuation Accounts.
Before the close of the meeting of the Trustees of the Fund as contemplated by Order 17, the Wife shall do all acts and things and sign all documents necessary to:
a)Resign her membership of the Fund;
b)Resign as a Trustee of the Fund;
c)Vote in favour of any resolution that the Husband may propose prior to her resignation which may have the effect of appointing an additional or new Trustee of the Superannuation Fund and to vote to appoint an additional new Trustee as the Husband may so direct.
Pending the transfer of the benefits to the Wife's new Superannuation Fund, the Husband and the Wife in their capacity as Trustee of the Fund is restrained from dealing with, charging, encumbering or disposing of any asset of the Fund other than in accordance with the terms of these Orders and each party shall immediately revoke any Binding Death Nomination already made and each party be and is hereby restrained from:
a)Making any Binding Death 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 will 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.
Following the transfer of the benefits to the Wife's new Superannuation Fund, the Husband indemnify and keep indemnified the Wife and the Wife's new Superannuation Fund against all liability of and in relation to the Fund including but not limited to any unpaid income tax assessed or hereinafter assessed against the Fund in respect of income derived or deemed to have been derived by the Fund inclusive of interest, penalties, costs and fines from all proceedings, costs, claims or demands in respect thereof.
Contents
That pursuant to clause 4.14 of the BFA, the Husband and the Wife do all acts and things and sign all documents necessary to cause the furniture, furnishings and household contents contained within D Street to be divided between them in accordance with the pick-a-pile method as follows:
a)The Wife shall prepare 2 lists of the furniture, furnishings and household contents that were situated at D Street as at the date of separation and the furniture, furnishings and household contents contained in each list will be of approximate value to that contained in the other list;
b)The Husband shall choose a list from the 2 lists; and
c)The Husband shall do all acts and things necessary to deliver the items on the Wife's list to the Wife.
That for the purposes of implementation of Order 21 herein, the Husband shall do all acts and things to:
a)Enable the Wife to have unfettered access to D Street within 3 days of the date of these Orders at a time nominated by the Wife, in order to prepare the 2 lists of furniture, furnishings and household contents for a period not less than 8 hours;
b)Maintain the furniture, furnishings and household contents in good condition, fair wear and tear excepted.
In the alternative to Order 22 herein, that the Husband pay to the Wife the additional sum of $30,000 simultaneously with the payment made pursuant to Order 6(o) herein.
Other Orders
That pending the sale of D Street, the Husband do all acts and things necessary to ensure that:
a)The interior and exterior of D Street presents in good condition, fair wear and tear excepted;
b)The Husband pays all minimum Mortgage repayments due in respect of D Street Mortgage, together with the payment of all rates, taxes, charges, improvements and expenses relating to D Street.
That pending the sale of D Street, the Husband be restrained from increasing the level of indebtedness of D Street Mortgage and the R Bank Mortgage secured against 2 G Street
That the Husband indemnify the Wife in relation to:
a)Any liabilities due by the Husband or the Second Respondent to the ATO;
b)Any loss suffered directly or indirectly due to the Husband's failure to comply with Order 4, 8, 9, 17, 20, 21(b), 21(c), 22, 23 and 24 herein;
c)All claims, demands, debts alleged and/or due by the Wife to F Pty Limited (in Liquidation) and/or NN Pty Limited and/or D Pty Limited and/or EE Pty Limited and/or DD Pty Limited.
Subject to these Orders, the Husband and the Wife each retain as against the other the sole right, title and interest in:
a)Any motor vehicles, plant and equipment, chattels, goods, furnishings, paintings and jewellery and any other property which are at the date hereof in their possession respectively;
b)Any monies, shares and debentures which stand in their sole names respectively as at the date hereof;
c)Any interest in Superannuation which stand in their sole names respectively as at the date hereof.
That if the Husband refuses or neglects to execute a document that he is required to execute pursuant to these Orders, the Registrar of the Court be appointed pursuant to section 106A to execute such document in the name of the Husband and to do all acts and things necessary to give validity to the operation of the document and that the Husband pay the Wife's costs of and incidental to any such Application.
Child Support
That pursuant to section 117 and section 124 of the Child Support (Assessment) Act 1989, there be a departure from the Administrative Assessment of child support issued by the Department of Human Services (Child Support) payable by the Husband to the Wife in respect of the children X born in 2007 and Y born in 2012 ("the children") such that the Husband pay the following in respect of the children:
a)Periodic payments to the Wife for child support as assessed by the Department of Human Services (Child Support); and
b)From the date of these Orders by way of non-periodic payments:
i)100% of any payments due to a school attended by the children being school fees and related expenses as they appear on the accounts issued by the school, such payments to be made directly to the school;
ii)Health insurance premiums at the maximum level of cover, such payments to be made directly to the Health Insurance Fund together with the payment of any gap expenses in respect of the children's medical, dental and psychological treatments;
iii)Reasonable costs of and incidental to the children's participation in extra curricular activities for any activity nominated by the Wife, provided that the Wife gives the Husband written notice prior to the child's enrolment in that activity.
Further or in the alternative, that pursuant to section 117 and section 124 of the Child Support (Assessment) Act 1989 there be a departure from the Administrative Assessment of Child Support issued by the Department of Human Services (Child Support) payable by the Husband to the Wife in respect of the children X born in 2007 and Y born in 2012 ("the children"), such that the Husband pay a lump sum (in lieu of periodic payments of child support for X of $155,064 and Y of $284,284 and non periodic payments of $42,000 for X and $42,000 for Y) to the Wife of $523,348.
Costs
That the Husband pay the Wife's costs of and incidental to these proceedings on an indemnity basis.
Annexure B
Addendum to orders sought by the wife
30(a) Further or in the alternative, that pursuant to sections 117 and 124 of the Child Support (Assessment) Act 1989, there be a departure from the Administrative Assessment of child support issued by the Department of Human Services (Child Support) payable by the Husband to the Wife in respect of the children X born in 2007 and Y born in 2012 ("the children"), such that the Husband pays by way of lump sums:
a)$42,000 for X and $42,000 for Y in lieu of non-periodic payments of child support;
b)$103,972 for X and Y in lieu of periodic payments of child support for 2 years from the date of these Orders (calculated at $994 per week);
c)$335,976 (calculated at $994 per week for 4 years and $497 per week for 5 years) to be retained in a Controlled Monies Account ("CMA") retained by Swaab to be held in Trust for the Husband and the Wife pending further Order of the Court in respect of the Wife's adjourned Application for lump sum child support departure Order.
Annexure C
Orders sought by the husband
C Street
a)That the Husband do all acts and things and sign all documents necessary to sell the C Street property at the best price reasonably attainable and for the Husband to cause the sale proceeds to be paid in the following manner and priority
b)In payment of the Agents commission and Auction expenses due to the sale
c)Wife to pay the required amount to discharge the C Street Mortgage
d)In payment to the husband of half living expenses and lump sum payments of mortgage whilst residing at property $84,300
e)The Wife to receive $170,000 and the husband $50,000
f)Husband to receive as to renovations he paid for to C Street property $149,000
g)pursuant to Clause (3) Wife irrevocably indemnify the Husband in respect to C Street Fees, taxes, penalties, charges and Damages.
g)[sic] Husband receive value of equitable contribution acting as guarantor for the wife from the date of divorce to date $500,000
D Street
a)That within 30 days of the date of these orders the Wife do all acts and things and sign all documents necessary to appoint the Husband as the Wife's Trustee and the Husband will cause such appointment to be served upon the Conveyancer and Agent
That the Husband and Wife do all acts and things and sign all documents necessary to sell D Street and in Particular to
b)[sic] Instruct L Conveyancing to prepare a contract for Sale of Land for D Street
c)List D Street with a Real Estate Agent for the sale of D Street by Public Auction at the earliest possible date
d)Execute all documents for the sale of D Street requested by the Agent for the sale of D Street
e)Request the Agent to appoint an Auctioneer to Auction D Street
f)Execute a Contract for Sale of Land in respect of D Street, subject to reserve price of Mr E valuation at $1,800,000.
g)execute all other documents necessary to complete the sale of D Street.
a)Wife to repay half of rental payments received by her as per orders 8 May 2019 including back pay in the amount of $35,563
b)In payment of the amount required to discharge any mortgage registered on the title to D Street as at settlement
c)In repayment of $25,000 to Barre Pty Ltd received via 8 May Order
a)In Payment into the mortgage in favour of R Bank secured against real property situated at 2 G Street, in respect of the arrears.
b)The wife’s application for a lump sum Child support departure be dismissed with Costs
c)Repayment from net sale proceeds loan from Barre Pty Ltd to be paid refer to Husbands Implementation of BFA
d)Repayment of mediation and valuation fees to Barre Pty Ltd $10,000
Superannuation
The Wife resign from the Barre Super fund, the Husband to remain as the Public officer
As per Husbands "implementation of the BFA" wife to receive the only contribution made by her employer P Company
Or in the alternate 2 G Street to be sold and wife receive her contribution, husband as capacity as Public Officer appoint an Agent and Conveyancer for the sale at auction at reserve price as set out by valuation by Mr E, $1,380,000
Payment to the Wife amount of $5,500 to a Superannuation fund nominated by the Wife. ("the wife's new Superannuation fund")
The wife shall do all acts and things and sign all documents necessary to
a)Resign her membership of the fund
b)Resign as a Trustee of the fund
c)Roll her contribution into a new Fund of her choice.
d)Wife to pay Canning & Co auditing costs $6,600
CMA
Monies held in CMA to be released to Forth Respondent the amount of $45,000 and the balance released to Barre Pty Ltd
a)Swaab to pay the interest that they have withheld from CMA to Barre Pty Ltd The sum of $35,600
b)Barre Pty Ltd to receive funds from sale of D Street $160,000
c)Undertaking from Wife as to damages on the injunction of money belonging to Barre Pty Ltd to be quantified and paid with costs
Child Support
Child support to be assessed by CSA husband to pay 50% of all cost relating to children's school fees and sporting activities and health care.
Costs
The wife pay the husband's costs in defending Wife's application in setting aside the BFA as per husbands "implementation of BFA" $250,000
Annexure D
Orders sought by Ms Gilliam
Order to Consolidate file SYC 6149/2016 and SYC342/2019.
Hearing dates in file SYC342/2019 6,7,8 February 2019 be otherwise vacated
Pursuant to Sec 4AA (2),(3) & (4) & Sec 4A
(3.1) Declaration of a Defacto Relationship existed between Ms Gilliam & Mr Barre
(3.2) In the alternate a Defacto Relationship Financial Cause exists between Ms Gilliam & Mr Barre
Order 6 November 2019 in file SYC342/2019 Order 2 is dismissed
(4.1) The court notes ( C.) and (D.) be otherwise dispensed /dismissed pending further order of the court
Order 13 January 2019 in file SYC342/2019 Order 7 the Subpoena granted at (a) “R Bank” is amended to “R Bank- division of Westpac corporation”
(5.1) Leave granted for short service returnable by 5th January 2020
Within 3 days of the date of these orders Swabb Solicitors is directed to pay from “the CMA” Controlled Monies account Pursuant to Sec 90xc (2) Lump sum Spousal Maintance [sic] or pursuant to such discretion as the court sees fit interim Spousal Maintance [sic] in the amount of $10,000 to a bank account as nominated by Ms Gilliam
That pursuant to section 90RD of the act,It is declared that
(7.1) A de facto relationship existed between the Applicant and the Respondent
(7.2) The period of the de facto relationship for the purposes of section 90SB(a) was between June 2016 and 23 December 2018;
(7.3) That the Applicant made substantial contributions pursuant to section 90SM(4)(a), (b) and (C)
That leave is granted to Ms Gilliam to email the Associate written submissions and Minute Orders sought on a final basis no later than 4 February 2020
Or in the alternate to orders 1 to 8 inclusive
That the court hears the “The Defacto Declaration” proceedings SYC342/2019 on a defended or undefended basis
(9.1) The court relies on Applicant Ms Gilliam Case outline of 1 May 2019 & minute of orders sought
(9.2) The Balance Sheet be substituted for the applicants updated balance joint balance sheet dated 30th January 2020 sent 1 February 2020 to the associate of Honourable Judge Harper in file SYC6149 /2016
and
That in file SYC149/2016 the 1st and 2nd respondents pay the 4th Respondent the amount of $228,000 in repayment of the loan
(10.1) Payment made pursuant to orders to 8 May 2019 and 3 December 2019 to 4th respondent in the amount of $25,000 and $50,000 are particularised as damages pursuant to the Applicant wife’s undertaking in order 3 May 2017 and taken from her separate property pursuant to the “BFA”
(10.2) That a Judicial officer be substituted for the Applicant wife and 1st respondent to do all acts and things to cause the property situate at 2 G Street Road to be listed for Auction with an agent nominated by agreement between the Applicant wife and 1st respondent with in [sic] days 21 days of the date of these orders,failing [sic] agreement as nominated by the 4th Respondent
(10.2) [sic] That the Auction reserve price set at $1,250,000
(10.3) That the costs of the Auctioneer not exceed $1500 + GST
(10.4) That further cost of Auction inclusive of marketing not exceed $2500 + GST
(10.5) That the cost of conveyancing not exceed $3500 + GST and be completed by Swabb solicitors in first instance or as nominated by the 4th Respondent
(10.6) That the cost of 10.3,10.4,10.5 be borne by the Applicant and 1st Respondent equally
(10.7) That the U Real Estate or any agent or person collecting rent for investment property situated at D Street be ordered to apply $400 from the gross total of rent received per fortnight toward morgage R Bank Loan account 553815357 prior to disbursement of any kind.
(10.8) That no person shall further encumber 2 G Street Road Suburb B up until settlement and the applicant wife file and serve an updated Morgage bank statement with pay out figure as at date of issue within 7 days of the date of these orders
(10.9) That period for settlement be no greater than 12 weeks of exchange of contract
(10.10) That the proceeds of sale less morgage, costs and disbursements be subject to injunction paid into the court
(10.11) That the sale by Auction occur no later than 41 days from the date of these orders
(10.12) That payment to the 4th Respondent be made subject to order 10. Forthwith [sic]
(10.13) That payment to Q Lawyers be made pursuant to to [sic] creditors Petition filed in FFCA SYG3005 of 2019 dated 18th November in the fixed sum of $87,000 be paid
(10.14) That if a clause of “the BFA” is inconsistent with these orders that clause be void for enforceability pursuant to any clause of the “BFA” May apply [sic]
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