Barrett & Simmel (No 2)

Case [2023] FedCFamC1F 773

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Barrett & Simmel (No 2) [2023] FedCFamC1F 773

File number(s): MLC 9563 of 2021
Judgment of: CARTER J
Date of judgment: 8 September 2023
Catchwords: FAMILY LAW – PROPERTY – interpretation of final orders – whether ‘close of trading’ means close of trading on the ASX – where the final orders tied the share price to the close of trade – where there was no on market trading of particular shares on the day the final orders were made – s 79A application of the Family Law Act 1975 (Cth) to vary the orders – whether there has been a miscarriage of justice as a result of suppression of evidence – whether there has been a miscarriage of justice as a result of any other circumstance – where the Court finds there has been no miscarriage – where discretion would not have been exercised had miscarriage been established.
Legislation:

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.11

Family Law Act 1975 (Cth) s 79A

Cases cited:

Barker& Barker (2007) 26 Fam LR 650

In the marriage of Holland, M.R. and Holland K.C. (1982) FLC 91-243
Division: Division 1 First Instance
Number of paragraphs: 75
Date of hearing: 21-22 August 2023
Place: Melbourne
Counsel for the Applicant: Mr Fabian Dixon SC
Counsel for the Applicant: Mr Soren Heggie
Solicitor for the Applicant: Taussig Cherie Fildes
Counsel for the Respondent: Mr Geoff Dickson KC
Solicitor for the Respondent: Lander & Rogers

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:

8 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.The Further Amended Initiating Application filed by the wife on 31 July 2023 be dismissed.

2.The Amended Response filed by the husband on 7 August 2023 be otherwise dismissed.

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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUSTICE CARTER

  1. Final orders were made by consent in mid-2022 at about 12.23 pm, having been sent to my chambers from the wife’s solicitors, at approximately 10.00 am that day.

  2. Pursuant to the orders, the wife was to receive a cash payment…

Continue reading Barrett & Simmel (No 2)

Sign in free to access the full text

Details
AGLC
Barrett & Simmel (No 2) [2023] FedCFamC1F 773
Case
[2023] FedCFamC1F 773
Decision Date

CaseChat Overview and Summary

In Barrett & Simmel (No 2), the Federal Circuit and Family Court of Australia addressed an appeal regarding the interpretation of final orders in a property settlement. The dispute centred on the interpretation of the term 'close of trading' as it pertained to the Australian Securities Exchange (ASX) share price in the context of the parties' final orders. The wife argued that the husband had suppressed evidence that could have influenced the share price on the day the final orders were made. The court was tasked with determining whether there had been a miscarriage of justice due to the suppression of evidence or any other circumstances, and if so, whether it would have exercised its discretion to vary the orders.

The court found that the husband had no obligation to inform the wife about off-market trades or an article he read about a takeover bid, as these were publicly available and the wife had access to her own expert. The court held that there was no miscarriage of justice due to suppression of evidence, as the husband had no duty to disclose information that was not material to the orders. Furthermore, the court determined that even if there had been a miscarriage of justice, it would not have exercised its discretion to vary the orders. The mechanism for valuing the shares was agreed upon by both parties, taking into account the volatility of the shares, which was well known to all involved.

The court dismissed the wife's application for variation of the orders, upholding the original settlement. The orders were made in good faith and were the result of protracted negotiations between the parties and their legal representatives. The court found that it was not appropriate to vary the orders simply because the application of the chosen mechanism had favoured the husband.

Orders

Orders of the court

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:

8 SEPTEMBER 2023

THE COURT ORDERS THAT:

1. The Further Amended Initiating Application filed by the wife on 31 July 2023 be dismissed.

2. The Amended Response filed by the husband on 7 August 2023 be otherwise dismissed.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Moreover, I am not satisfied that the wife receiving approximately 27 per cent of the larger pool (if I accepted her evidence as to the ‘true value’ of the B Pty Ltd shares) instead of 32.5 per cent of that pool renders the overall result not appropriate, or not just and equitable such that I could be satisfied there has been a miscarriage of justice. Miscarriage of justice – suppression of evidence It was an important consideration in Barker that the husband had deliberately withheld information from the wife as to offers to purchase the property. It was conceded by senior counsel for the wife that there was no evidence to suggest the husband in the extant proceedings had prior information about the off market trades, the takeover bid or the impact that might have had on the share price that he should have disclosed to the wife. At its highest, the husband appeared to have read about the takeover, at the higher share price, in a news publication on the morning of the date of the orders before the wife did so. I do not regard the husband as having any duty to contact the wife or her solicitors and advise them about an article he read in a publicly available publication. This is particularly so in circumstances where the wife gave evidence that she had ready access to her family’s economist with whom she spoke on the date of the orders. Nor do I regard the husband as being under a duty to disclose on that date prior to the orders being made that day, and after becoming aware of off market trades of B Pty Ltd shares at around $1.50 that he was going to rely on the ASX share price of just over $1. He could not be said to have a duty to disclose that he would rely on what I have determined to be the correct interpretation of Order 1.3 of the orders. Accordingly, the wife’s assertions as to a suppression of evidence must fail. Should I exercise my discretion Where a party establishes there has been a miscarriage of justice, that in and of itself is not sufficient to justify the variation or setting aside of an order. Rather, the applicant must satisfy the Court both that there has been a miscarriage of justice and that it is an appropriate exercise of the discretion to vary or set the order aside; Barker at [134]. In the extant case, even had I been satisfied that there had been a miscarriage of justice, I am not satisfied that I would exercise my discretion and vary the order. As already observed, the orders were made in good faith using an agreed method of setting the value of the shares for the purpose of calculating the pool and the wife’s entitlement in that pool. The parties were both represented by very competent solicitors, and the orders were crafted by the parties and their legal representatives over a protracted period of negotiations. The parties came up with the mechanism as included in the orders specifically to take into account the volatility of the shares, which had, post separation and over the course of those negotiations, fluctuated substantially. The volatility of the shares was well known to the parties and their representatives. It does not seem appropriate to me that the Court should now vary the orders because the application of the mechanism chosen by the parties has ultimately favoured one party over the other.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.