FAMILY COURT OF AUSTRALIA
Barre & Barre (Superannuation) [2021] FamCA 463
File number(s): SYC 6149 of 2016 Judgment of: HARPER J Date of judgment: 19 August 2021 Catchwords: FAMILY LAW – PROPERTY – Superannuation – Where the parties have interests in a self-managed superannuation fund – Where final judgment already delivered concerning enforcement of a binding financial agreement – Where Court has found it cannot make splitting orders and there is no enforceable superannuation agreement - Where the husband is bankrupt and removed as a director of trustee corporations – In circumstances where the self-managed superannuation fund owns real estate – Where Court sought further submissions and evidence concerning superannuation interests – Where wife obtains expert advice about how to manage superannuation interests. Legislation: Family Law Act 1975 (Cth) ss 90G, 114
Corporations Act 2001 (Cth) s 206B
Real Property Act 1900 (NSW) s 57
Superannuation Industry (Supervision) Act 1993 (Cth) ss 10, 17A, 67A, 106A
Cases cited: Barre & Barre [2021] FamCA 101
CSR Ltd v Chief Commissioner of State Revenue (2006) 68 NSWLR 440
Number of paragraphs: 47 Date of last submission/s: 2 August 2021 Date of hearing: On the papers Place: Sydney Solicitor for the Applicant: Swaab Attorneys The First Respondent: Litigant in Person ORDERS
SYC6149 of 2016 BETWEEN: MS BARRE
Applicant
AND: MR BARRE
First Respondent
BARRE PTY LIMITED
Second Respondent
MS GILLIAM (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
19 AUGUST 2021
THE COURT ORDERS THAT:
1.The First Respondent Husband (“the husband”) and the Third Respondent be restrained by injunction from doing any act or thing to:
(a)Cause a Caveat to be lodged against the Title to real property situate at and known as 2 G Street, Suburb B in the State of New South Wales (Folio Identifier …) ("2 G Street");
(b)Contact or approach prospective purchasers of 2 G Street or their Lawyers or the Agent acting on any sale of 2 G Street.
2.That within 7 days of the Applicant Wife (“the wife”) notifying the husband of the date of settlement of any sale of 2 G Street, the husband:
(a)Provide to the wife in her capacity as Director of the Barre Super Fund Pty Limited, as Corporate Trustee for the Barre Family Super Fund details of a compliant superannuation fund into which the Husband's member interests in the Barre Family Super Fund are to be rolled over; and
(b)Execute all necessary documents and provide all necessary authorities to facilitate and bring about the said roll over.
3.For the avoidance of doubt, all claims in the proceedings concerning superannuation interests are otherwise dismissed.
4.Any outstanding bankruptcy issues are stood over to a date to be advised.
5.The wife's costs of and incidental to the determination of the issues the subject of the judgment herein be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy…
Continue reading Barre & Barre (Superannuation)
Sign in free to access the full text
- AGLC
- Barre & Barre (Superannuation) [2021] FamCA 463
- Case
- [2021] FamCA 463
- Decision Date
CaseChat Overview and Summary
The court was required to determine how to address the husband's member interests in the superannuation fund in light of the prior judgment and the husband's bankruptcy, and to consider the wife's application for further orders, including injunctions and directions for the rollover of the husband's superannuation interests. The court also had to consider outstanding bankruptcy issues.
Harper J applied principles relating to the court's inability to make superannuation splitting orders in the absence of an enforceable agreement or specific legislative power. The court acknowledged the wife's efforts to obtain expert advice regarding the management of the superannuation interests. The court ultimately granted injunctions restraining the husband and a third respondent from lodging a caveat against the title of a property owned by the fund and from contacting prospective purchasers of that property. The court also ordered the husband to provide details of a compliant superannuation fund for the rollover of his member interests and to execute all necessary documents to facilitate this rollover within seven days of the wife notifying him of the settlement date of any sale of the property. All other claims concerning superannuation interests were dismissed, and outstanding bankruptcy issues were stood over.
Orders
Orders of the court
SYC6149 of 2016
BETWEEN:
MS BARRE
Applicant
AND:
MR BARRE
First Respondent
BARRE PTY LIMITED
Second Respondent
MS GILLIAM (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
19 AUGUST 2021
THE COURT ORDERS THAT:
1. The First Respondent Husband (“the husband”) and the Third Respondent be restrained by injunction from doing any act or thing to:
(a) Cause a Caveat to be lodged against the Title to real property situate at and known as 2 G Street, Suburb B in the State of New South Wales (Folio Identifier …) ("2 G Street");
(b) Contact or approach prospective purchasers of 2 G Street or their Lawyers or the Agent acting on any sale of 2 G Street.
2. That within 7 days of the Applicant Wife (“the wife”) notifying the husband of the date of settlement of any sale of 2 G Street, the husband:
(a) Provide to the wife in her capacity as Director of the Barre Super Fund Pty Limited, as Corporate Trustee for the Barre Family Super Fund details of a compliant superannuation fund into which the Husband's member interests in the Barre Family Super Fund are to be rolled over; and
(b) Execute all necessary documents and provide all necessary authorities to facilitate and bring about the said roll over.
3. For the avoidance of doubt, all claims in the proceedings concerning superannuation interests are otherwise dismissed.
4. Any outstanding bankruptcy issues are stood over to a date to be advised.
5. The wife's costs of and incidental to the determination of the issues the subject of the judgment herein be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.