Barre & Barre and Ors

Case [2019] FamCA 907

FAMILY COURT OF AUSTRALIA

BARRE & BARRE AND ORS [2019] FamCA 907
FAMILY LAW – COSTS – Whether the Court should make an interim release of property in proceedings under the Family Law Act 1995 (Cth) – Whether there should be a release of funds from controlled monies account – where there is an order in the nature of a freezing order – order made to release funds – where the characterisation of the funds will be determined at final hearing.
Family Law Act 1975 (Cth) s 117
Barre & Barre; Gilliam & Barre [2019] FamCA 315
Cardile v LED Builders Pty Limited [1999] 198 CLR 380
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Jackson v Sterling Industries Ltd (1987) 162 CLR 612
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Strahan & Strahan (interim property orders) (2011) FLC 93-466
Zschokke & Zschokke (1996) FLC 92-693
FIRST AND SECOND APPLICANTS: Mr Barre and Barre Pty Ltd
FIRST RESPONDENT: Ms Barre
SECOND RESPONDENT: Ms Haynes
THIRD RESPONDENT: Ms Gilliam
FILE NUMBER: SYC 6149 of 2016
DATE DELIVERED: 3 December 2019
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Harper J
HEARING DATE: 21 November 2019

REPRESENTATION

COUNSEL FOR THE  FIRST AND SECOND            

APPLICANT:

 Mr O'Reilly
SOLICITOR FOR THE  FIRST AND  SECOND APPLICANT: Mitchell Lawyers
COUNSEL FOR THE FIRST RESPONDENT: Mr Blackah
SOLICITOR FOR THE FIRST RESPONDENT: Swaab Attorneys
COUNSEL FOR THE SECOND RESPONDENT: Mr Salama
SOLICITOR FOR THE SECOND RESPONDENT: Wood Marshall Williams and Lawyers
SOLICITOR FOR THE THIRD RESPONDENT: Mr Milevski

Orders

  1. The parties take all necessary steps to cause the release from the funds presently held in the controlled monies account in the name of Swaab Attorneys (# …78) within seven (7) days of:

    (a)       $70,000 to the First Applicant Mr Barre and

    (b)       $50,000 to the Third Respondent, Ms Gilliam.

  2. The characterisation of the nature of each payment will take place at final hearing.

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 and Ors 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

Mr Barre and Barre Pty Ltd

First and Second Applicants

And

Ms Barre

First Respondent

And

Ms Haynes

Second Respondent

And

Ms Gilliam

Third Respondent

REASONS FOR JUDGMENT

  1. These are reasons for judgment concerning an Application by the respondent Mr Barre by the First and Second Applicants, Mr Barre and Barre Pty Ltd (“Barre Pty Ltd”) for the release to Mr Barre…

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AGLC
Barre & Barre and Ors [2019] FamCA 907
Case
[2019] FamCA 907
Decision Date

CaseChat Overview and Summary

In *Barre & Barre and Ors*, Harper J of the Federal Circuit and Family Court of Australia considered an application for the release of funds from a controlled monies account. The proceedings involved two substantive matters: the enforcement of a binding financial agreement and a declaration regarding a de facto relationship. The funds in question were the balance of proceeds from the sale of real estate owned by Barre Pty Ltd, a company controlled by Mr Barre. An existing court order, analogous to a freezing order, prevented the dissipation of these funds pending the final resolution of the proceedings.

The court was required to determine whether to grant an order for the release of specific amounts from the controlled monies account, despite the existing restraint on the funds. This involved considering the nature of the funds, their significance as a financial resource for Mr Barre, and the potential impact of any release on the ultimate outcome of the matrimonial and de facto proceedings. The court also had to address the characterisation of any payments made from the account, which was to be determined at a final hearing.

Harper J reasoned that while the funds were not directly owned by the parties, they represented a significant financial resource for Mr Barre, being the balance of proceeds from a company he controlled. The existing freezing order was intended to prevent the frustration of potential court orders in favour of other parties. However, the court noted that a partial consent order had previously been made, releasing $130,000 to Ms Haynes, who then ceased to be a party. In the present application, a partial consent order was reached by the parties for the release of $70,000 to Mr Barre and $50,000 to Ms Gilliam.

The court made orders for the release of $70,000 to Mr Barre and $50,000 to Ms Gilliam from the controlled monies account within seven days. The characterisation of these payments was expressly reserved for the final hearing.

Orders

Orders of the court

1.

The parties take all necessary steps to cause the release from the funds presently held in the controlled monies account in the name of Swaab Attorneys (# …78) within seven (7) days of:

(a) $70,000 to the First Applicant Mr Barre and

(b) $50,000 to the Third Respondent, Ms Gilliam.

2.

The characterisation of the nature of each payment will take place at final hearing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There are two substantive proceedings listed before me, one concerning the enforcement of a binding financial agreement, and the other seeking a declaration as to the existence of de facto relationship. I have set out the relationship between them and details of the procedural history of each matter in my judgment dated 8 May 2019, Barre & Barre; Gilliam & Barre [2019] FamCA 315 (Anonymised) (“the May judgment”). These reasons for judgment should be read with the May judgment. I will adopt the description of each set of proceedings used in the May judgment being the matrimonial proceedings and the de facto proceedings. At present the balance in the controlled monies account, according to the material, is approximately $368,707. Pursuant to Orders made in the May judgment each of the parties to the proceedings, as then constituted, received payment of $25,000 from the controlled monies account. An order was also made otherwise freezing the funds in the controlled monies account pending agreement of the parties or further order of the Court. It is important to repeat that the monies in the controlled monies account are the balance of the proceeds of sale of a parcel of real estate owned by Barre Pty Ltd. None of the parties apart from Barre Pty Ltd have any proprietary interest in the funds. The only shareholder in Barre Pty Ltd is another company named D Pty Limited, of which Mr Barre is the sole director and shareholder. It is clear therefore that Mr Barre can exercise control over the disposition of the funds in the controlled monies account in the absence of the Court’s order prohibiting any such dealings. They are a financial resource for Mr Barre. The funds in the controlled monies account will also clearly form part, at least, of the basis for the value of Mr Barre’s share in D Pty Limited. The existing order dated 8 May 2019 preventing release of funds is in the nature of, or is analogous to, a freezing order. It was common ground that it was made on the basis that the balance of the funds in the controlled monies account should remain untouched in order to prevent dissipation and ultimate frustration of any orders of the Court made ultimately in favour of parties other than Mr Barre including his former wife, Ms Haynes or Ms Gilliam. It continued an earlier order restraining dissipation of the fund in the controlled monies account. By his Application, Mr Barre originally sought a further order of the Court releasing $160,000 to him from the controlled monies account. Initially each party indicated they opposed such an order. When the matter was called on 21 November 2019 the parties asked for time to engage in negotiation. After some hours a form of partial consent orders was produced. Those orders provided for a payment to Ms Haynes, who was the Second Respondent, of $130,000, as a result of which she ceased to be a party to the proceedings, made no further claims and agreed to dismiss proceedings she had on foot against Mr Barre and some of his companies in the District Court of New South Wales. All parties consented to these orders being made.

Ratio Decidendi

Legal Principle Established

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