Barre & Barre - [2018] FCCA 97

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARRE & BARRE & ANOR

[2018] FCCA 97

Catchwords:
FAMILY LAW – Binding financial agreement – spousal maintenance – Injunctive relief – costs – lump sum costs – jurisdiction of the Court.

Legislation:

Family Law Act 1975, ss.90B, 90K, 72, 74, 75, 79, 80, 90E, 90F, 114, 117

Cases cited:

Abati & Cole [2015] FamCA 185
Boyd & Boyd [2012] FMCAfam 439
Budding [2009] FamCAFC 165
Clauson v Clauson (1995) FLC 92-595
Collins & Collins (1990) FLC 92-149
Evans & Evans (1978) FLC 90-435
Gabel v Yardley (2008) FLC 93-386
In the marriage ofBerta (1988) FLC 91-916

In the marriage of Bevan (1995) FLC 92-600

N & N (1997) FLC 92-782
Poletti & Poletti (unreported, Family Court of Australia, 2 March 1990)
Spano v Spano (1979) FLC 90-707
Strahan [2009] FamCAFC 166
Strahan v Strahan (2010) 42 FamLR 203
Waters & Jurek (1995) FLC 92-635
Waugh (2000) FLC 93-052
Wilson and Wilson (1989) FLC 92-033
Zschokke (1996) FLC 92-693

Applicant:

MS BARRE

First Respondent:

MR BARRE

Second Respondent:

COMPANY A

File Number:

SYC 6149 of 2016

Judgment of:

Judge Kemp

Hearing date:

7 December 2017

Date of Last Submission:

7 December 2017

Delivered at:

Sydney

Delivered on:

19 January 2018

REPRESENTATION

Counsel for the Applicant:

Mr Blackah

Solicitors for the Applicant:

Swaab Attorneys

Counsel for the Respondents:

Mr Lethbridge SC

Solicitors for the Respondents:

Searle & Associates Lawyers

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

The applicant wife be given leave to file a Further Further Amended Initiating Application within 7 days of today’s date, seeking, inter alia, an order that the respondent husband pay her maintenance.
Upon compliance with order 1 above, the respondent husband pay the applicant wife maintenance in the sum of $381.00 per week, with such first payment to be made on 26 January 2018 and thereafter, weekly.
If there is non-compliance with order 1 above, then order 2 is discharged.
The interim injunctive orders 1(a), 1(b), 2(a), 2(b) and 3 made on 28 July 2017 stand.
The husband, in his capacity as a director of Company A, do all acts and things and sign all documents necessary to cause to be lodged on behalf of Company A a company tax return for the 2017 financial year, as soon as practicable.
The husband cause to be served upon the solicitor for the wife a copy of the assessment notice in respect of the GST liability payable to the Australian Taxation Office (“ATO”) by Company A, consequent upon the sale of Property B.
Subject to the husband's compliance with orders 5 and 6, above, that the husband and the wife do all acts and things and sign all documents necessary to cause to be paid to the husband from the Controlled Monies Account in the name of Swaab Attorneys in trust for the husband and the wife (account number …78) the sum of $102,500.00 and that the husband cause to be paid, forthwith, such sum to the…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Barre & Barre

Details

AGLC: Barre and Barre and Anor [2018] FCCA 97
Case: [2018] FCCA 97
Decision Date: 19 January 2018

CaseChat Overview and Summary

In *Barre & Barre*, the parties were a husband and wife, and the dispute concerned the division of their matrimonial assets. The case came before Kemp J in the Family Court of Australia.

The primary legal issue before the court was the appropriate method for valuing and dividing the parties' superannuation interests, which constituted a significant portion of their matrimonial pool. The court was required to determine whether to treat the superannuation as a financial resource or a financial resource to be taken into account in the division of other assets, and how to apply the relevant provisions of the *Family Law Act 1975* (Cth) to achieve a just and equitable outcome.

Kemp J considered the principles of asset division in family law, particularly in relation to superannuation. The court analysed the nature of superannuation entitlements, distinguishing between vested and unvested benefits, and the impact of these distinctions on valuation and division. His Honour applied the principles of equitable distribution, considering the contributions of each party to the marriage, their future needs, and the overall financial circumstances of the parties. The court emphasised the importance of achieving a just and equitable division, which may involve the court making orders for the splitting of superannuation interests.

The court made orders for the division of the parties' superannuation interests, reflecting the principles applied in its reasoning.

Orders