Barstow & Barstow

[2021] FamCA 427

FAMILY COURT OF AUSTRALIA

Barstow & Barstow [2021] FamCA 427

File number(s):	ADC 560 of 2017
Judgment of:	BERMAN J
Date of judgment:	23 June 2021
Catchwords:	FAMILY LAW – PROPERTY SETTLEMENT – Final Orders – Where the parties agree all orders to be made save and except one issue – Where the husband seeks the delivery up of personal items and household effects – Where the husband made an initial request in 2016 – Where the wife’s position is that she does not have any of the items and considers the husband took them at separation – Where no evidence is presented that the wife currently holds or retains the items – Where the husband does not seek any alternate order.
Legislation:	Family Law Act 1975 (Cth) Pt VIII
Number of paragraphs:	49
Date of hearing:	19 May 2021
Place:	Adelaide
Solicitor for the Applicant:	Self-Represented
Counsel for the Respondent:	Ms Horvat
Solicitor for the Respondent:	Lindbloms Lawyers

ORDERS

ADC 560 of 2017
BETWEEN:	MR BARSTOW Applicant
AND:	MS BARSTOW Respondent

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	23 JUNE 2021

THE COURT ORDERS:

1.That in full and final settlement of any claim which either party may have for settlement of property or alteration of interests in property under Pt VIII of the Family Law Act 1975 (Cth):

(a)The applicant shall retain as his property absolutely free from any and all claims by the respondent:

(i)The applicant’s Motor vehicle 1 with the estimated value of FIVE THOUSAND DOLLARS ($5,000);

(ii)The applicant’s G Bank Account No. ...84;

(iii)The joint bank accounts of the parties which are to be closed forthwith;

(iv)Any other personal property in the applicant’s possession not otherwise specified herein.

(b)The respondent shall retain as her property absolutely free from any and all claims by the applicant:

(i)The respondent’s E Bank Account;

(ii)Any other personal property in the respondent’s possession not otherwise specified herein.

2.That in relation to the applicant husband’s H superannuation fund account number ...95 :

(a)A base amount of SIXTY FOUR THOUSAND AND SIXTY SEVEN DOLLARS AND FORTY SEVEN CENTS ($64,067.47) is allocated, as required by s 90XT(4) of the Family Law Act 1975 (Cth), to the non-member spouse (the respondent wife) out of the applicant husband member spouse’s interest in the H superannuation fund;

(b)That in accordance with s 90XT(1)(a) of the Family Law Act 1975 (Cth):

(i)The respondent wife non-member spouse is entitled to be paid the amount calculated in accordance with Pt VI of the Family Law (Superannuation) Regulations 2001 (Cth) and;

(ii)The applicant husband member spouse’s entitlement, and the entitlement of such other person or persons to whom a splittable payment may be made out of the H superannuation fund, are correspondingly reduced.

(c)The Trustee of the H superannuation fund (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

(i)Calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth), the entitlement for the respondent wife non-member spouse created by paragraphs 2 (a) and (b) of these orders; and

(ii)Pay the entitlement whenever the Trustee makes a splittable payment from the respondent interest in the H superannuation fund.

(d)That within seven (7) days of this order being made the respondent wife non-member spouse shall serve a copy of this order upon the Trustee.

(e)That this order shall have effect from the operative time and the operative time for paragraph 2(a) is the fourth business day after service of sealed and final orders on the Trustee.

(f)That payments from the applicant husband’s superannuation interest made after the Trustee has rolled over or transferred the transferable benefits to a fund of the respondent wife’s choosing are not splittable payments.

(g)That having been afforded procedural fairness the Trustee shall be bound to observe the requirements pursuant to the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth).

(h)That the parties each pay a fee charged by the Trustee in administering the payment split pursuant to paragraph 2(a) herein.

(i)The respondent wife non-member spouse’s:

(i)date of birth is … 1970; and

(ii)address is B1 Street, Suburb C.

3.That save and except for enforcement of these orders, other than herein provided, the applicant and the respondent each be declared the sole legal and beneficial owners of all other items of personalty and realty of whatsoever nature and kind presently in their respective possession or control.

4.That the applicant and respondent shall be solely liable for and indemnify and keep indemnified the other against any liability in their own name and any liability related to or encumbering any items of property retained by them pursuant to these orders.

5.That the parties shall execute each and every document so as to put into effect the terms of these orders within fourteen (14) days of presentation to them or their solicitors.

6.That in the event that either party shall fail or neglect to execute such documents as aforesaid then the applicant and the respondent appoint, pursuant to s 106A of the Family Law Act 1975 (Cth), the Registrar or a Deputy Registrar of the Family Court of Australia in Adelaide to execute each and every document on behalf of the defaulting party.

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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Barstow & Barstow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BERMAN J

INTRODUCTION

1. By Amended Initiating Application filed 28 April 2021, Mr Barstow (“the husband”) seeks the following orders:

   1.That the superannuation assets of the parties be split 60/40 in favour of the respondent based on the current balances of the respective funds.

   2.That the respondent deliver up the personal items and household effects as previously requested by the applicant at a mutually agreeable time and location.

   3.That the respondent does all things necessary to allow for the closure of joint Westpac Savings account …19.

   4.That the respondent does all things necessary to be removed from the joint E Bank accounts associated with membership …59.

   5.The parties bear their own costs with respect to this hearing.

   …

2. By her Amended Response to Initiating Application filed 12 May 2021, Ms Barstow (“the wife”) agrees with the superannuation split sought by the husband and also seeks the following orders:

   1.That the Applicant shall retain as his property absolutely free from any and all claims by the Respondent:

   a.The Applicant’s Motor vehicle 1 with the estimated value of FIVE THOUSAND DOLLARS ($5,000);

   b.The Applicant’s G Bank Account No. ...84;

   c.The joint bank accounts of the parties which are to be closed or have the Respondent’s name removed;

   d.Any other personal property in the Applicant’s possession not otherwise specified herein.        

   2.That the Respondent shall retain as her property absolutely free from any and all claims by the Applicant:

   a.   The Respondent’s E Bank Account;

   b.   Any other personal property in the Respondent’s possession not otherwise specified herein.

   3.That the D Family Trust and J Trust are to be varied and the Applicant is to remove or cause to remove the Respondent and their two children, X and Y as beneficiaries of both trusts forthwith.

   4.That the Respondent and their two children, X and Y are not to be named as beneficiaries in any further trusts of the Applicant hereafter.

   …

3. On 27 June 2008, A Pty Ltd (“the company”) was appointed as the trustee of the D Family Trust which was settled on 27 June 2008 (“the Family Trust”).

4. Pursuant to s 491(1) of the Corporations Act 2001 (Cth) (“Corporations Act”) the company resolved to be wound up and Mr Jenkins was appointed as a liquidator of the company.

5. On 16 December 2019, the husband lodged a debtor’s petition which resulted in Mr Rodgers being appointed as the trustee of the husband’s bankrupt estate.

6. The trustee in bankruptcy and the liquidator of the company were both joined as parties to the proceedings.

7. On 1 March 2021, orders were made which finalised property settlement as between the wife and Mr Rodgers in his capacity as trustee in bankruptcy and Mr Jenkins in his capacity as liquidator of the company.

8. Whilst the orders are complex, the gravamen of the agreement is that the liquidator was ordered to transfer to the wife the following assets held by the company in liquidation:

   (a)The property situate at B1 Street, Suburb C;

   (b)One half share of the motor vehicle 2;

   (c)The motor vehicle 3;

   (d)One shipping container (not the contents thereof);

   (e)A generator; and

   (f)Animals.

9. Contemporaneously with the transfer of the items referred to, the wife was to pay the settlement sum of $313,460 comprising an upfront payment of $185,000 with the balance to be paid by dividend distribution from the company.

10. Following the order of 1 March 2021, the parties were able to reach agreement in respect of all outstanding matters other than a claim by the husband that the wife retains a quantity of furniture and personal effects of the husband.

11. A minute of order was tendered with sufficient detail that consent orders are able to be made in respect of settlement of property pursuant to Pt VIII of the Family Law Act 1975 (Cth) (“the Act”). The proposed orders also include orders that facilitate a superannuation split of a base amount of $64,067.47 from the splittable entitlement of the husband in his H superannuation fund account number ...95.

12. Exhibit “3” in the proceedings comprises correspondence passing between the wife’s lawyers and the trustees of H superannuation fund that are sufficient to satisfy the obligation that before a superannuation splitting order can be made, the trustees of H superannuation fund are afforded procedural fairness.

13. The proposed orders seek that the husband shall do all things necessary to remove the wife and their children, X and Y, as beneficiaries from the trust with the intention that they will not be utilised by the husband as potential recipient beneficiaries of trust distributions.

14. The children were not joined to the proceedings and did not have an opportunity to be heard in respect of the proposed orders.  X is no longer a child and as such, an order as sought by the parties should not be made.

15. Following further discussion, it appears that any difficulty of the children and the wife remaining as beneficiaries of either the Family Trust or the J Trust are more imagined than real.  The Family Trust has been wound up and the J Trust does not mention the wife or the children as beneficiaries.  For the purpose of the proceedings, I accept the husband’s assurance that he is not the appointor, a trustee nor is he able to exercise control over the trustee.

16. I indicated, without opposition, that I would not make orders as sought by the parties in respect of the trusts.

    ISSUES REMAINING FOR DETERMINATION

17. The husband has long maintained that following separation on 13 July 2013 or September 2014, in anticipation of the wife leaving the former matrimonial home at K Street, L Town (“the L Town property”) he sought that the wife deliver up to him the list of items set out in his email to the wife dated 16 May 2016, being annexure “A1” to the husband’s affidavit filed 28 April 2021.

18. The first part of the email is relevant to the current proceedings: [1]

    [1] Affidavit of the husband filed 28 April 2021, annexure “A1”.

    From: Mr Barstow

    Sent: Monday, 16 May 2016 10:10 AM

    To: ‘Ms Barstow’

    Subject: moving

    As you know I have found a rental place to move to once L Town is sold, so I will need some stuff from the containers. Given you’re going to come over to collect retaining blocks etc. it would be great if you could bring it all to L Town. I’ve made a list below – it should be all I need for now, see how I go. I can’t be bothered fossicking around for kitchen stuff so I’ll just use what I’ve got here and buy whatever I don’t.

    •LG TV that used to be here – the 60” one that sat in front of the fireplace when we moved it up there – hopefully the remote is not too hard to find

    •The bluray player that was downstairs (3D one)

    •My entertainment unit – the one I had before we met

    •Yamaha amp and the mission speakers

    •The Sony dvd player – I think it’s model 597 or 897 – it’s a single disc dvd player with lots of buttons on the front

    •Those two rugs that were in 815 (one has coloured rectangles/squares the other one has brown edging and off-white)

    •Those two round orange woolly rugs that you hate

    •That little two-door cupboard that used to be in the office and I used to have the printer on it (desk height one)

    •All my boxes of clothes and shoes etc.

    •My DVD’s, CDs and books

    •All the gym stuff – the bench, weights, balls, that frame thing etc.

    •All my sheet music, music books etc.

    •One of those chairs that was in 815

    •The spare Whirlpool microwave (the convection one from the bench here that I’ve asked for previously but you didn’t bring over – the turntable is in the cupboard here I notice)

    If you could bring that stuff over this week that would be great but next week would be ok too. I’m also open to coming up to the farm and getting this stuff myself but understand if you don’t want me to – although some is probably a bit heavy or difficult without help.  You can just put it in the carport as there’s no point bringing it into the house just to take it out again.

    I will take everything else from here.  I think I have all the other furniture I need for now.  I would still like the motor vehicle 1 at some stage too as it’s great to transport the dogs.

    …

19. It is not controversial that the wife did not provide to the husband the items as set out in his email other than for two small boxes which contained some miscellaneous clothing and effects.

20. The husband’s claim for the delivery up of the items of furniture and personal effects has been an ongoing issue that has permeated the proceedings to date.

21. The parties underwent mediation on 2 July 2020 but did not resolve the furniture aspect of the dispute.  By email sent to the wife on 14 July 2020, the list of items as sought by the husband was slightly modified and provided some further description of the items sought. 

22. The husband concedes that many of the items would now be of limited use or utility and that in any event the value to be attributed to the items sought is considered to be of sentimental value only.  Simply put, the husband considers that the wife retained the sought after items whereas the wife disavows any current knowledge as to the current whereabouts of the items and maintains that the majority of the items were retained by the husband following separation.

23. The wife currently resides in South Australia whereas the husband has re-partnered and now resides in Queensland.

    DOCUMENTS RELIED UPON

    Husband

    (a)Trial affidavit of the husband filed 28 April 2021;

    (b)Affidavit of the husband filed 14 October 2020; and

    (c)Financial Statement of the husband filed 28 April 2021.

    Wife

    (a)Trial affidavit of the wife filed 12 May 2021;

    (b)Affidavit of the wife filed 13 October 2020; and

    (c)Financial statement of the wife filed 12 May 2021.

    THE EVIDENCE

    The husband

24. The husband relied upon his trial affidavit which annexed an affidavit of Ms M, sworn 21 April 2021, who has been working on the liquidation of the company in her role as manager since 3 December 2019.

25. Ms M was required for cross-examination.

26. Her evidence was straight forward.  She attended at the wife’s property at B2 Street, Suburb C (“the farm”) on 29 June 2020 with Mr N, a valuer employed for the purposes of valuing the company assets.

27. Ms M asked the wife to unlock two shipping containers so that the valuer could assess and ascertain the contents of the containers.  The wife refused.

28. There is some confusion as to the basis for Ms M’s request.  The evidence revealed that the husband had advised her that there may be some company property comprising office equipment of minor value.  The principle interest of the liquidator was the retention of the container and it appears that the valuer’s task was primarily to value the container itself rather than the contents.

29. Ms M states that the wife refused her request on the basis that there was nothing in the container of interest to the liquidator and the container could be easily inspected from the outside, avoiding any need for it to be opened.

30. It is agreed that Ms M abandoned her request to gain access to the container and the valuer assessed the value of the container at $1,500.

31. There is some uncertainty as to the position of the husband in terms of the importance to his case of the containers retained by the wife.  It seems that the husband believed that the furniture and personal effects as requested by him were either placed in the container or may have well remained therein.

32. His evidence was clear that when he left the L Town property he did not take the items as specified in his subsequent email to the wife and argues that it would have been nonsensical for him to take the items and then forward an email to the wife pretending that they still remained in the L Town property.

33. There was no suggestion that the husband was disingenuous in his evidence and whilst there was an appearance of dogged pursuit of the specified items notwithstanding they were of little or no value, there was nothing to suggest that he was an inherently unreliable witness.

    The wife

34. The wife contends that when the parties separated she moved out of the L Town property with the children.  She took up residence at the P Town property where she currently remains living.

35. The parties agreed to sell the L Town property in 2015 and whilst preparing the property for sale they lived separately and apart but under the same roof at the P Town property.

36. The wife is trenchant in her denial that she has retained the furniture and personal effects sought by the husband.  It is her position that she does not retain any of the items sought and specified by the husband.

37. Even though the outstanding issue between the parties is of limited compass and scope, the wife’s trial affidavit was of little assistance.  It is only during the cross-examination of the wife that she was referred to her affidavit of 13 October 2020.  In that document, the wife responds with particularity and detail to the direct claim of the husband that she has retained the specified items.

38. Paragraph 8 of her affidavit specifically deals with items 1 to 25 inclusive.

39. Whilst the wife denies any knowledge of the items and their current whereabouts, it is her belief that they were taken by the husband at separation. 

40. She highlights that after the L Town property was sold the husband packed his own belongings and relocated to Suburb Q before his move to Queensland where he now currently resides. 

1. She says that the items sought by the husband were never stored in the storage containers and challenges the husband’s claim by noting that she vacated the L Town property 7 years ago and the husband’s request for the return of the items has been relatively recent in the history of the litigation.

2. The wife was unconvincing in her explanation as to why she denied access to the interior of one of the containers as sought by Ms M.

3. There is some force to the husband’s argument that it would have been a nonsense to seek the furniture and personal items from the wife in his 2016 email if he had at all times retained the items.  In any event, the request was not the subject of any response by the wife.

   CONCLUSION

4. There is some uncertainty as to the orders that the husband seeks.  I assume that he seeks orders that the items as set out in the subsequent email of 14 July 2020, being annexure “A2” to the husband’s trial affidavit, as the items he wishes to be delivered up to him.

5. The husband does not seek any alternate order.  It is apparent that whatever may be the truth of the matter, no evidence has been presented that would establish the wife currently holds or retains the items sought by the husband.  The husband does not seek that in the absence of any or all of the specified items being returned to him, that there be a monetary sum paid to him.

6. As discussed, whilst I prefer the evidence of the husband to that of the wife I am not satisfied that the husband has established, on the balance of probabilities, that the wife retained the items at separation contrary to her denial and that she still retains those items.  Mere suspicion and speculation is not enough.

7. Given the overall complexity of the proceedings, it was likely that there would be little utility in the husband’s application.  It is regrettable that the proceedings have been ruinously expensive in terms of legal fees and there is no doubt that the wife’s fees incurred in disputing the husband’s current claim far outweighs any value that may attach to the disputed items.

8. I propose to dismiss the husband’s claim and make orders in terms of the minute of order submitted but with the discussed amendments.

9. I make orders as appear at the commencement of these reasons.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.

Associate:

Dated:       23 June 2021