Barre & Barre; Gilliam & Barre - [2019] FamCA 315

FAMILY COURT OF AUSTRALIA

BARRE & BARRE; GILLIAM & BARRE

[2019] FamCA 315

FAMILY LAW – PRACTICE AND PROCEDURE – where the parties in two proceedings overlap – where proceedings listed together – where creditor in matrimonial proceedings also claims husband was her de facto partner – where declaration sought pursuant to s90RD of the Family Law Act 1975 (Cth) – where the husband’s legal representatives filed a Notice of Ceasing to Act one working day prior to the hearing – procedural fairness afforded to the husband – hearing was limited to the issue of interim property distribution.

FAMILY LAW – PROPERTY – Interim distribution – where funds in a controlled monies account – the second and third respondents are creditors of the husband in the matter of Barre & Barre – order for interim property distribution to all the parties.

Family Law Act 1975 (Cth) ss 79, 90AE, 90K, 90KA, 90RD, 91, 91A, 91B, 92, 92A
Family Law Rules 2004 (Cth) rr 1.04, 6.02

APPLICANT:

(SYC 6149 of 2016)

Ms Barre

FIRST RESPONDENT:

Mr Barre

SECOND RESPONDENT:

(SYC 6149 of 2016 and SYC 342 of 2019)

Barre Pty Ltd

THIRD RESPONDENT:

(SYC 6149 of 2016)

Ms Haynes

FOURTH RESPONDENT:

(SYC 6149 of 2016 and SYC 342 of 2019))

Ms Gilliam

FILE NUMBER:

SYC

6149
342

2016

2019

DATE DELIVERED:

8 May 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Harper J

HEARING DATE:

6 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Blackah

SOLICITOR FOR THE APPLICANT:

Swaab Attorneys

COUNSEL FOR THE FIRST RESPONDENT:

In person

COUNSEL FOR THE SECOND

RESPONDENT:

In person

COUNSEL FOR THE FIRST INTERVENOR:

Mr Salama

SOLICITOR FOR THE FIRST

INTERVENOR:

Wood Marshall Williams

COUNSEL FOR THE SECOND

INTERVENOR:

Mr Dura

SOLICITOR FOR THE SECOND

INTERVENOR:

Barry Nilsson Lawyers

Orders

Barre & Barre - SYC 6149 of 2016

Leave be granted to Ms Haynes and Ms Gilliam to intervene as parties to the proceedings.
Ms Haynes henceforth be named as Third Respondent.
Ms Gilliam henceforth be named as Fourth Respondent.
There be paid to each of the Applicant, Ms Barre, the First Respondent, Mr Barre, and the Third & Fourth Respondents, Ms Haynes and Ms Gilliam respectively, the sum of $25,000 from the funds held in the Controlled Monies Account in the name of Swaab Attorneys (#…78) within 7 days.
The parties execute all necessary documents and take all necessary steps to effect the payments referred to in the previous order.
Orders be made in accordance with Paragraphs 1(a) and 1(b) of the orders sought in the Applicant’s Amended Response to an Application in a Case filed 2 May 2019.
Except as provided in these orders, pending agreement of the parties, including the Third & Fourth Respondents, or further order of the Court, each of the parties, including the Third & Fourth Respondents is restrained from taking any steps to dissipate, release or otherwise deal with the balance of funds held by or on behalf of the Applicant and First Respondent…

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.

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Details

Case: [2019] FamCA 315
Decision Date: 8 May 2019

CaseChat Overview and Summary

In the proceedings of *Barre & Barre* and *Gilliam & Barre*, Harper J considered a dispute involving overlapping parties and a creditor seeking a declaration under s90RD of the *Family Law Act 1975* (Cth) that she was in a de facto relationship with the husband. The husband's legal representatives filed a Notice of Ceasing to Act shortly before the hearing, which was limited to the issue of interim property distribution.

The court was required to determine whether procedural fairness had been afforded to the husband, given the last-minute withdrawal of his legal representation, and to make orders for the interim property distribution of funds held in a controlled monies account. The second and third respondents were creditors of the husband in the *Barre & Barre* proceedings.

Harper J found that procedural fairness had been afforded to the husband, despite the circumstances of his legal representation. The court ordered that $25,000 be paid from the controlled monies account to each of the applicant, the first respondent, and the newly named third and fourth respondents (Ms Haynes and Ms Gilliam, respectively). The parties were directed to execute necessary documents to effect these payments. Further orders were made regarding the restraint of dissipation of the remaining funds in the account, the dismissal of the fourth respondent's application, and the adjournment of extant applications. The court also made directions for the service of financial materials and the filing of a financial statement, and granted leave for the first respondent to file further applications. The requirements for the third and fourth respondents' intervention were dispensed with, and costs for a specific period were reserved.

Orders

Orders of the court

Barre & Barre - SYC 6149 of 2016

Leave be granted to Ms Haynes and Ms Gilliam to intervene as parties to the proceedings.

Ms Haynes henceforth be named as Third Respondent.

Ms Gilliam henceforth be named as Fourth Respondent.

There be paid to each of the Applicant, Ms Barre, the First Respondent, Mr Barre, and the Third & Fourth Respondents, Ms Haynes and Ms Gilliam respectively, the sum of $25,000 from the funds held in the Controlled Monies Account in the name of Swaab Attorneys (#…78) within 7 days.

The parties execute all necessary documents and take all necessary steps to effect the payments referred to in the previous order.

Orders be made in accordance with Paragraphs 1(a) and 1(b) of the orders sought in the Applicant’s Amended Response to an Application in a Case filed 2 May 2019.

Except as provided in these orders, pending agreement of the parties, including the Third & Fourth Respondents, or further order of the Court, each of the parties, including the Third & Fourth Respondents is restrained from taking any steps to dissipate, release or otherwise deal with the balance of funds held by or on behalf of the Applicant and First Respondent in the Controlled Monies Account in the name of Swaab (#...78).

The Fourth Respondent’s Application in a Case filed 30 April 2019 be otherwise dismissed.

All extant applications be adjourned to 21 June 2019 at 12:00pm for call-over.

10.

Each of the Applicant, the First Respondent and Second Respondent serve upon the Third & Fourth Respondents by no later than 4:00pm on 14 June 2019 copies of all material filed in these proceedings in relation to the financial issues between the Applicant and First Respondent after 11 September 2018.

11.

The First Respondent file and serve a Financial Statement by no later than 4:00pm on 14 June 2019.

12.

Leave be granted to the First Respondent to file and serve an Application in a Case seeking either removal of the Third and/or Fourth Respondents as parties or for the release of any further monies to him and any Affidavit in support by no later than 4:00pm on 31 May 2019.

13.

To the extent necessary, the requirements for the Third & Fourth Respondents to comply with rule 6.02 of Family Law Rules 2004 (Cth) in relation to their intervention in the proceedings be dispensed with.

14.

All questions of costs for the period 6 May 2019-8 May 2019 be reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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