Barstow & Barstow

This matter concerned an application by Mr Barstow (the applicant husband) against Ms Barstow (the respondent wife) for the delivery up of personal items and household effects. The parties had agreed on all but one issue in their property settlement. The husband's claim related to items he had initially requested in 2016, to which the wife's position was that she did not possess the items and believed the husband had taken them at the time of separation.

The central legal issue before Berman J was whether the court should make orders for the delivery of specific personal items and household effects to the husband, given the wife's denial of possession and the lack of evidence that she currently retained them. The court was also required to determine the final property settlement orders, including the division of superannuation interests.

Berman J reasoned that while there was some indication the husband had not retained the items he now sought, the crucial factor was the absence of evidence demonstrating the wife currently held or retained the disputed items. The husband had not sought an alternative order for monetary compensation in lieu of the items. Despite preferring the husband's evidence on other aspects, the court was not satisfied, on the balance of probabilities, that the wife retained the items at separation contrary to her denial, nor that she still retained them. The court noted the significant legal costs incurred by both parties, particularly the wife's costs in disputing this claim, which far outweighed the value of the disputed items.

Consequently, Berman J dismissed the husband's claim regarding the personal items and household effects. The court made final orders in full and final settlement of the property dispute, including the division of bank accounts and a specific allocation from the husband's superannuation fund to the wife, with the parties retaining other property in their possession.