Barrett & Winnie

Case [2022] FedCFamC1A 99

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Barrett & Winnie [2022] FedCFamC1A 99  

Appeal from: Barrett & Winnie [2021] FamCA 625
Appeal number(s): NAA 22 of 2021
File number(s): BRC 13257 of 2007
Judgment of: MCCLELLAND DCJ, BAUMANN & HARTNETT JJ
Date of judgment: 1 July 2022
Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the appellant appeals from the primary judge’s determination that a property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) would not be just and equitable – Multiple respondents and trusts – Where the appellant concedes that a property adjustment would require trust property to be determined as constituting the matrimonial property pool – No error established – Trust property not included in matrimonial property pool – Numerous grounds of appeal not addressed in appellant’s Summary of Argument or oral submissions – Appeal dismissed – Costs ordered – Appellant to pay respondents’ costs in a fixed sum.
Legislation:

Family Law Act1975 (Cth) ss 4, 75(2), 79, 85A, 106B, 117, 117(2A)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Australian Competition and Consumer Commission (ACCC) v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181

Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30

Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; [1995] FCA 350

Bilson & Geer (Costs) [2017] FamCAFC 7

Browne v Dunn (1893) 6 R 67; [1893] 1 WLUK 44

Fitzgerald v Fish (2005) 33 Fam LR 123; [2005] FamCA 158

Goodwin and Goodwin Alpe (1991) FLC 92-192; [1990] FamCA 147

Graham & Squibb (2019) FLC 93-892; [2019] FamCAFC 33

House v the King (1936) 55 CLR 499; [1936] HCA 40

Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56

Kowaliw & Kowaliw (1981) FLC 91-092; [1981] FamCA 70

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Lenehan & Lenehan (1987) FLC 91-814; [1987] FamCA 8

Lock v Westpac Banking Corporation (1991) 25 NSWLR 593

McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Omacini & Omacini (2005) FLC 93-218; [2005] FamCA 195

Raine & Creed [2013] FamCA 362

Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

Rollings & Rollings (2009) 230 FLR 396; [2009] FamCAFC 87

Shaw and Shaw (1989) FLC 92-030; [1989] FamCA 5

Swishette Pty Ltd and Another v Australian Competition and Consumer Commission (2017) 249 FCR 483; [2017] FCAFC 45

Townsend & Townsend (1995) FLC 92-569; [1994] FamCA 144

Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173

Woodcock v Woodcock (1997) FLC 92-739; [1997] FamCA 5

Woodland and Todd (2005) FLC 93-217; [2005] FamCA 161
Number of paragraphs: 232
Date of hearing: 1 March 2022
Place: Brisbane (via videolink)
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AGLC
Barrett & Winnie [2022] FedCFamC1A 99
Case
[2022] FedCFamC1A 99
Decision Date

CaseChat Overview and Summary

In this case, the appellant, Mr Barrett, appealed against the primary judge's decision that a property adjustment pursuant to section 79 of the Family Law Act 1975 (Cth) would not be just and equitable. The respondents were Ms Winnie, Mr Winnie, and several trusts, collectively referred to as the respondents. The appeal was heard in the Federal Circuit and Family Court of Australia, Division 1 Appellate Jurisdiction. The appellant argued that the primary judge had erred in not including certain trust properties in the matrimonial property pool for the purposes of the property adjustment.

The court had to decide whether the primary judge had made any error in excluding trust property from the matrimonial property pool for the purposes of the property adjustment. The appellant conceded that a property adjustment would require trust property to be determined as constituting the matrimonial property pool, but argued that the primary judge had erred in excluding the trust property in this case. The court had to consider the evidence and findings of the primary judge regarding the trust property and whether they were correct.

The court found that the primary judge had not made any error in excluding the trust property from the matrimonial property pool. The court noted that the appellant had not addressed numerous grounds of appeal in his submissions, and that the primary judge's findings regarding the trust property were supported by the evidence. The court also noted that the appellant had failed to establish that the primary judge's decision was wrong. The appeal was dismissed, and the appellant was ordered to pay the respondents' costs in a fixed sum.

The court's decision was based on the evidence and findings of the primary judge, which were not challenged by the appellant. The court found that the primary judge had correctly excluded the trust property from the matrimonial property pool for the purposes of the property adjustment, and that the appellant had not established any error in the primary judge's decision. The appeal was dismissed, and the appellant was ordered to pay the respondents' costs in a fixed sum.

Orders

Orders of the court

NAA 22 of 2021

BRC 13257 of 2007

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR BARRETT

Appellant

AND:

MS WINNIE

First Respondent

MR WINNIE

Second Respondent

B PTY LTD (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

MCCLELLAND DCJ, BAUMANN & HARTNETT JJ

DATE OF ORDER:

1 JULY 2022

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant is to pay the costs of the respondents in the sum of $23,580.51 within 28 days.

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

Where they are collectively referred to, the parties, including the parties to the marriage, will, for convenience, be referred to as “the parties to the proceedings”.BACKGROUND The appellant was born in 1959 and is now 63 years of age. He is a qualified professional but presently works as a technician. The first respondent was born in 1951 and is currently 70 years of age. The first respondent holds degrees in science and humanities, and has worked as a health professional, educational professional, professional and, since about 2000, an executive and consultant. The parties to the marriage commenced cohabitation in either 1989 or 1990, with that date being immaterial to this appeal. The parties to the marriage lived together for a period of 15 or 16 years. However, relevant to the assessment of contributions, the primary judge found that the appellant, by his own account, initially spent significant periods of time working overseas in South East Asia and the Pacific in the early stages of cohabitation and that, in the final stages of that cohabitation, the appellant was working in Sydney. Also relevant to the assessment of the respective contributions by the parties to the marriage is that no challenge has been made to the findings of the primary judge that there was regular volatility in their relationship, leading to various periods of separation (at [19]–[20]). The parties to the marriage have one child together, Ms I, born in 1995. She is now 27 years of age. The parties to the marriage separated on a final basis in 2005, at which time Ms I was 10 years of age. Subsequent to the separation of the parties to the marriage and extending for a period of approximately two years, Ms I lived with the first respondent and occasionally stayed with the appellant for short periods. Also relevant to the assessment of contributions are the unchallenged findings by the primary judge that, from about the time that Ms I was 12 years old, the first respondent undertook the sole parenting role in respect to Ms I (at [23]). Other than in respect to what the primary judge found to be relatively minor contributions by the appellant, for a limited period in respect to private school fees for Ms I, responsibility for Ms I’s financial support fell entirely to the first respondent. The first respondent married Mr K in 2007, shortly after the parties’ divorce was finalised. The first respondent now goes by the name of Mrs K and does not have any children together with Mr K. The appellant has also remarried and has another child from that marriage who, at trial, was aged approximately 12 years. As will be described in greater detail throughout this judgment, the parties to the proceedings have, at various times, acquired and sold property. Where E Pty Ltd and the third and fifth respondents have acquired property, they have done so as corporate trustees of the relevant trusts to which reference has been made. For reasons set out by the primary judge, his Honour did not include, in the balance sheet of the property of the parties to the marriage, the trust property owned by E Pty Ltd and the third and fifth respondents in their capacities as corporate trustees of the relevant trusts.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In July 1999, the Suburb NN unit was sold and a property known as the Suburb SS property was purchased by E Pty Ltd for $300,000.First respondent’s loss of professional registration In 1999, the first respondent’s name was deregistered following disciplinary proceedings commenced by a professional organisation. The primary judge accepted the evidence of the first respondent that, in the period following the first respondent being deregistered, she and the appellant were “living separate lives” and “effectively separated under the same roof” (at [108]). In 2000, arrangements were made by the first respondent for her business partner, Mr TT, to undertake the work of the business. The primary judge found this to be an arrangement pending the qualification of the second respondent who was, at that time, studying the profession and who it was anticipated would undertake the business in his own right.V Street property In May 2001, the fourth respondent purchased a property known as the V Street property for $650,000. The primary judge accepted the evidence of the fourth respondent that the purchase was funded by $200,000 provided by the P Family Trust, which had been received from the Suburb PP property sale, and the balance being obtained by the fourth respondent through a loan from Bank 2 in her name. Relevantly, the appellant contended that he made a contribution in respect to the acquisition of this property because documents produced by Bank 2 confirmed that the appellant had signed the said documents as a co-borrower. The primary judge at [71], however, rejected the appellant’s contention that he provided security for the loan in the form of the Suburb CC property because, at that time, he did not own the property; it was purchased subsequently. It is of further relevance that, at [112], the primary judge found the appellant “made no contribution to loan repayments and indeed made no contribution to the maintenance or conservation of the V Street property despite his occupation of it.” The V Street property was sold in June 2004 for $980,000.Suburb CC property In September 2001, the parties to the marriage purchased the Suburb CC property. It was purchased in the appellant’s sole name and subject to a mortgage in favour of Bank 2. The primary judge found at [114] that, in “keeping his finances separate, the [appellant] retained rental income from the [Suburb CC] property whilst residing in the [V Street] property as referred to, without making any financial contribution to the [V Street] property.” The mortgage over the Suburb CC property was discharged on 8 March 2004, prior to separation. In 2005, the parties to the marriage separated and subsequently divorced in 2006. In late 2006, following separation, the appellant sold the Suburb CC property. The primary judge found that from the sale proceeds, $160,762 was paid to the appellant, $11,127 to the appellant’s solicitor and $11,000 to the appellant’s solicitor’s trust account. The primary judge noted the evidence of the appellant was that the amounts paid to his solicitor were on account of legal fees in these proceedings (at [116]).UU Street property