Barrett & Simmel - [2022] FedCFamC1F 896

Federal Circuit and Family Court of Australia
(DIVISION 1)
Barrett & Simmel [2022] FedCFamC1F 896

File number: MLC 9563 of 2021

Judgment of: CARTER J

Date of judgment: 16 November 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – summary dismissal – where the husband makes an application seeking to summarily dismiss the wife’s application for orders under s 79A of the Family Law Act 1975 (Cth) – where it is sought that final property orders be set aside – where the wife submits that the method of the valuing the shares was flawed – miscarriage of justice – where the court is unable to be satisfied that the wife has no reasonable prospect of success – husband’s application for summary dismissal dismissed.

Legislation:
Family Law Act 1975 (Cth) ss 45A, 79, 79A, 113

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.09

Cases cited:
Barker & Barker [2007] FamCA 13

Bigg & Suzi [1998] FamCA 14

Blackwell and Scott (2017) 56 Fam LR 474

Fancourt & Mercantile Credits Ltd. (1983) 154 CLR 87

General Steel Industries Inc. &. Commissioner for Railways (N.S.W.) (1964) 112 CLR 125

Kowalski & Kowalski (1993) FLC 92-342

Lindon & The Commonwealth (No 2) [1996] HCA 14

M & M [2003] FamCA 1304

Ritter & Ritter & Anor (2020) FLC 93-957

Suiker & Suiker (1993) FLC 92-436

Webster & Lampard (1993) 177 CLR 598

Division: Division 1 First Instance

Number of paragraphs: 58

Date of last submissions: 2 November 2022

Date of hearing: 2 November 2022

Place: Melbourne

Counsel for the Applicant: Mr Fabian Dixon SC

Counsel for the Applicant: Ms Therese Borger

Solicitor for the Applicant: Taussig Cherrie Fildes Lawyers

Counsel for the Respondent: Mr Geoff Dickson KC

Solicitor for the Respondent: Lander & Rogers Lawyers
ORDERS

MLC 9563 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS BARRETT

Applicant

AND:
MR SIMMEL

Respondent

order made by:

CARTER J

DATE OF ORDER:

16 November 2022

THE COURT ORDERS THAT:
1.The husband’s application for summary dismissal of the wife’s Initiating Application filed 11 October 2022 is dismissed.
2.The matter be listed for Case Management Hearing on 2 December 2022 at 9.30 am.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under 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 Barrett & Simmel

Details

AGLC: Barrett & Simmel [2022] FedCFamC1F 896
Case: [2022] FedCFamC1F 896
Decision Date

CaseChat Overview and Summary

In the matter of Barrett & Simmel, the wife sought to vary the final orders made by consent on 30 August 2022. The husband opposed this application and sought summary dismissal. The wife’s application was predicated on the husband’s alleged non-disclosure of the value of his shares in B Pty Ltd and the impact of a trading halt on 30 August 2022. The husband argued that the application was without merit and should be dismissed as a waste of the court’s time.

The primary issue before the court was whether the wife's application for variation of the final orders should be summarily dismissed. This involved assessing whether the wife’s application had any reasonable prospect of success and whether there were any other compelling reasons why the court should not exercise its discretion to dismiss the application. The court had to determine whether the husband’s alleged non-disclosure of information and the subsequent trading halt on 30 August 2022 constituted sufficient grounds to warrant a variation of the orders. The court needed to examine if the wife's awareness of the trading halt and the subsequent timing of her application affected the fairness of the orders made.

The court found that the wife’s application was without merit and should be summarily dismissed. The court held that the wife had not demonstrated any reasonable prospect of success on the merits of her application. The wife’s claim of non-disclosure was not substantiated, and the court found that she had been aware of the volatility of the B Pty Ltd shares. Furthermore, the trading halt did not unfairly impact the valuation of the shares as it occurred after the final orders were made. The court considered the timing of the wife’s application, noting that she was aware of the trading halt but did not take any steps to address it before the orders were finalized. This led the court to conclude that the application was an attempt to relitigate issues that had already been resolved by consent. The court exercised its discretion to dismiss the application as an abuse of process.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The wife filed an application on 11 October 2022 seeking that the final orders made by consent on 30 August 2022 (“the final orders”) be varied pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth) (“the Act”). That is opposed by the husband, who seeks the wife’s application be summarily dismissed. This judgment deals with that application for summary dismissal. background The final orders were made by consent in chambers, and had been signed by the husband on 24 August 2022 and by the wife on 25 August 2022. They were sent to chambers by the wife’s lawyers at about 10.00 am on 30 August 2022, together with a joint letter explaining the final orders, co-signed by the parties’ practitioners. The proposed orders provided for the wife to receive 32.5 per cent of the pool of assets. I note that there is no challenge to the division of assets at 32.5 per cent to the wife and 67.5 per cent to the husband being a fair and appropriate outcome. Having been satisfied that it was just and equitable that orders be made, and that the proposed orders were appropriate in all the circumstances, the final orders were made by me at 12.23 pm that day. That joint letter was authored by the wife’s solicitors. It was dated 23 August 2022, and set out inter alia the history of the husband’s acquisition of shares in B Pty Ltd (“B Pty Ltd”). He had previously founded B Pty Ltd, a start-up company, from which he resigned in 2012, retaining his shareholdings. The husband now holds more than 3,000,000 shares in B Pty Ltd, which he will keep as part of the final orders. About six months before the parties’ final separation, the B Pty Ltd shares were listed at over $1.50 per share. They increased in valued such that in late 2020, around four months after the parties separated, they were valued at over $3.50 per share. As the joint letter set out:[B Pty Ltd] reached further peaks on 13 August 2021 […] and 5 November 2021 […]. At the time of separation, the [B Pty Ltd] shares [had declined in value] and as at 22 August 2022, [had declined further]....The value of the husband’s shareholdings in [B Pty Ltd] …will be determined as at the date of the final orders. To calculate the pool to effect the agreed percentage division, Order 1.3 of the final orders relevantly provided that the value of the B Pty Ltd shares, as well as shares in C Ltd and D Ltd would be determined “as at the close of trading on the date of these orders”. Thus, knowing the volatility of the B Pty Ltd share price, the parties reached an agreement to tie the value of the shares to the traded value as at the date the final orders were made. At the close of the ASX on 29 August 2022, the B Pty Ltd shares were trading at under $1.50 per share. That was a particularly low point for the share price. The company put in place a trading halt on 30 August 2022, and no shares were traded on the ASX that day. The wife said she became aware of the trading halt on the morning of 30 August 2022, and advised her lawyers of same at 10.52 am that day. My chambers were not notified.

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.

File number:	MLC 9563 of 2021
Judgment of:	CARTER J
Date of judgment:	16 November 2022
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – summary dismissal – where the husband makes an application seeking to summarily dismiss the wife’s application for orders under s 79A of the Family Law Act 1975 (Cth) – where it is sought that final property orders be set aside – where the wife submits that the method of the valuing the shares was flawed – miscarriage of justice – where the court is unable to be satisfied that the wife has no reasonable prospect of success – husband’s application for summary dismissal dismissed.
Legislation:	Family Law Act 1975 (Cth) ss 45A, 79, 79A, 113 Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.09
Cases cited:	Barker & Barker [2007] FamCA 13 Bigg & Suzi [1998] FamCA 14 Blackwell and Scott (2017) 56 Fam LR 474 Fancourt & Mercantile Credits Ltd. (1983) 154 CLR 87 General Steel Industries Inc. &. Commissioner for Railways (N.S.W.) (1964) 112 CLR 125 Kowalski & Kowalski (1993) FLC 92-342 Lindon & The Commonwealth (No 2) [1996] HCA 14 M & M [2003] FamCA 1304 Ritter & Ritter & Anor (2020) FLC 93-957 Suiker & Suiker (1993) FLC 92-436 Webster & Lampard (1993) 177 CLR 598
Division:	Division 1 First Instance
Number of paragraphs:	58
Date of last submissions:	2 November 2022
Date of hearing:	2 November 2022
Place:	Melbourne
Counsel for the Applicant:	Mr Fabian Dixon SC
Counsel for the Applicant:	Ms Therese Borger
Solicitor for the Applicant:	Taussig Cherrie Fildes Lawyers
Counsel for the Respondent:	Mr Geoff Dickson KC
Solicitor for the Respondent:	Lander & Rogers Lawyers

MLC 9563 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS BARRETT Applicant
AND:	MR SIMMEL Respondent

order made by:	CARTER J
DATE OF ORDER:	16 November 2022