Dawson & Barnaby

Case [2025] FedCFamC1A 2

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Dawson & Barnaby [2025] FedCFamC1A 2  

Appeal from: Barnaby & Dawson [2024] FedCFamC2F 1102
Appeal number: NAA 236 of 2024
File number: MLC 1455 of 2023
Judgment of: SCHONELL J
Date of judgment: 17 January 2025
Catchwords: FAMILY LAW – APPEAL – Where the appellant contends that the primary judge fell into error by not undertaking an analytical approach to the assessment of contribution – Where no error is found – Where the respondent sought costs against the appellant in accordance with scale – Consideration of factors under s 117(2A) of the Family Law Act 1975 (Cth) – Costs ordered in a fixed sum of $20,000
Legislation: Family Law Act 1975 (Cth) ss 79, 117, 117(2), 117(2A)
Cases cited:

Amero v Croft [2010] FamCAFC 118

Bennett and Bennett (1991) FLC 92-191

Bushby and Bushby (1988) FLC 91-919

Cook and Langford [2008] FamCAFC 84

Edwards v Noble [1971] 125 CLR 296; [1971] HCA 54

Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123; [2005] FamCA 158

House v The King [1936] 55 CLR 499; HCA 40

Metwally v University of Wollongong [1985] 158 CLR 447; HCA 28

Mifsud v Campbell (1991) 21 NSWLR 725

Morin & Simons [2024] FedCFamC1A 130

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

Pascoe & Larsen (No 2) [2022] FedCFamC1A 126

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Q and Q [1999] FamCA 1314

Warbrick & Warbrick (No 2) (2021) FLC 94-030; [2021] FamCAFC 101
Number of paragraphs: 63
Date of hearing: 9 December 2024
Place: Sydney
Counsel for the Appellant: Dr Ingleby
Solicitor for the Appellant: Bentleys Law
Counsel for the Respondent: Mr Hall
Solicitor for the Respondent: Carew Counsel

ORDERS

NAA 236 of 2024
MLC 1455 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS DAWSON

Appellant
AND:

MR BARNABY

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

17 JANUARY 2025

THE COURT ORDERS THAT:

1.The Amended Notice of Appeal filed 19 November 2024 is dismissed.

2.The appellant pay the respondent’s costs fixed in the sum of $20,000 within two months of the date of making this order.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court…

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Dawson & Barnaby [2025] FedCFamC1A 2
Case
[2025] FedCFamC1A 2
Decision Date

CaseChat Overview and Summary

In the case of Dawson & Barnaby, the appellant, Ms. Dawson, appealed against the orders made by the primary judge in Part VIII proceedings of the Federal Circuit and Family Court of Australia. The central dispute revolved around the division of property acquired during the marriage, specifically two properties purchased by a company controlled by the respondent, Mr. Barnaby, and funded in part by Ms. Dawson. The appeal contested the primary judge's decision regarding the adjustive orders under section 79 of the Family Law Act 1975 (Cth), particularly concerning the division of the properties and the application of funds from their sale.

The legal issues before the court included whether the primary judge correctly assessed the contribution of each party to the acquisition and maintenance of the properties, and if the orders made were just and equitable. Ms. Dawson argued that the primary judge did not undertake an analytical approach to the assessment of contribution, which she believed led to an unjust outcome. The court needed to determine if the primary judge's findings and orders were supported by the evidence and if they aligned with the principles of the Family Law Act.

The court found no error in the primary judge's approach and upheld the orders as made. The analysis of the parties' contributions, the value of their respective properties, and the application of the funds from the sale of the properties were all considered appropriate. The court also addressed the costs sought by the respondent, taking into account the factors under section 117(2A) of the Family Law Act. It concluded that the respondent was entitled to costs in the sum of $20,000, which the appellant was ordered to pay within two months of the date of the order.

In summary, the appeal was dismissed, and the primary judge's orders were affirmed. The appellant was required to pay the respondent's costs in the fixed sum of $20,000.

Orders

Orders of the court

NAA 236 of 2024

MLC 1455 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS DAWSON

Appellant

AND:

MR BARNABY

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

17 JANUARY 2025

THE COURT ORDERS THAT:

1. The Amended Notice of Appeal filed 19 November 2024 is dismissed.

2. The appellant pay the respondent’s costs fixed in the sum of $20,000 within two months of the date of making this order.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

By Amended Notice of Appeal filed 19 November 2024, the appellant appeals orders in Part VIII proceedings made by a Judge of Division 2 of the Federal Circuit and Family Court of Australia. The Amended Notice of Appeal contends five grounds. BACKGROUND In the proceedings before the court below, each of the parties sought adjustive orders pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) in what was found to be a relationship of some three years duration. In that respect, the primary judge found that the parties commenced cohabitation from 2019, married in 2020, and separated mid-2022. There were no children born of the relationship albeit the appellant had three children of a previous relationship. The parties conducted the hearing on the basis of an agreement in relation to what was described as “three pools” of property. It was an agreed fact that any adjustive order was to be made against only one of the pools. The primary judge described it in the following terms: 5The first pool (Pool A) is the property each party owned before the relationship started. Each party owned substantial property before the relationship started: the Husband owned net property before the relationship with a value of slightly more than $2,000,000. He had no debts. The Wife owned net property before the relationship with a value of slightly more than $1,000,000 even allowing for the fact that she had substantial debts in the nature of mortgages secured against real estate in [Suburb B], [Suburb C] and [Suburb D]. Of course, between 2019 and trial, the value of the parties’ Pool A property has changed. As is set out in the reasons below, I have found that the Wife’s total net property in Pool A has a value of $1,027,505. The Husband’s Pool A assets have a net value of $2,297,164. Neither party seeks an order altering their interests in property in Pool A.6The second pool (Pool B), to which I will return shortly, was principally comprised of two real estate parcels at [Property E] and [Property F], both close to [Location G]. The parties acquired these properties during the relationship at least in part to earn short-term rental income. It is the alteration of the parties’ interest in that property with which this case is concerned.7The third pool (Pool C) is the parties’ superannuation. Neither party seeks a superannuation splitting order as to the superannuation in Pool C. Each party will retain their own superannuation. The Husband will retain superannuation of approximately $407,868 (Balance sheet at Annexure A, items 48 and 49). The Wife will retain superannuation of $78,463… In relation to Pool B, the primary judge recorded that a company owned and controlled by the respondent was the legal owner of the Property E and Property F properties. In that respect, the primary judge observed: 8… I accept that the parties’ approach is appropriate, namly that I “look through” the corporate vehicle and treat the property owned by [Company H] as owned jointly by them. [Company H] is the trustee of a trust. The parties did not disclose any issue about its trustee status or the trust except to say that it may affect some capital gains tax issues. I therefore put those trust facts to one side.[Property E]9In September 2020 [Company H] acquired [Property E]. The transaction settled in December 2020. The purchase price was $420,000. [Property E]’s agreed current value is $600,000 (Annexure A, item 1). Initially, there was a mortgage of $302,000 (Ex. R19). The mortgage was discharged from the net proceeds on the sale of the second property ([Property F], below) and [Property E] is now owned unencumbered. During the period it has been owned, [Company H] derived income from short-term rentals of [Property E]. [Company H] remains the registered proprietor of [Property E]. The Wife wishes to retain ownership of [Property E]. The orders I will make will provide her with that opportunity, but that will mean that the Husband receives the residual funds held in the lawyers’ trust account ($264,004) and, in addition, the Wife will make a cash adjustment payment to the Husband of $200,319. If she does not make that payment, [Property E] will need to be sold. [Property F]10[I]n [...] September 2021, approximately one year after the purchase of [Property E], [Company H] purchased [Property F] for $2,000,000. The Wife funded the 10% deposit of $200,000. In addition, she funded the purchase by increasing her debt secured against her pre-relationship real estate. [Company H] borrowed approximately $1,375,000 to pay the balance (Ex. R20). The Husband was the sole guarantor of the loan.11Following the relationship’s breakdown, by a contract made on [...] January 2023, the Husband unilaterally sold [Property F] for $3,000,000.12Given [Company H] had purchased the property or $2,000,000 in September 2021 and it was sold less than 18 months later in early 2023 for $3,000,000, there was a capital gain. The [Property F] sale settled [i]n March 2023.13The debt under the [Property F] mortgage grew whilst [Company H] owned [Property F]. After costs and the discharge of the mortgage, net sale proceeds of $1,564,734 were paid into a lawyers’ trust account.14Subsequently, following court orders made on 1 May 2023, on 22 May 2023, $303,661 from the trust account was applied to discharge the [Property E] mortgage.15By court orders made on 1 May 2023, and subsequently, $909,549 has been applied from the lawyers’ trust account by way of part property settlement for both parties. The Wife has received $784,549 (Annexure A, items 32, 34 and 35). The Husband has received $125,000 (Annexure A, items 31 and 33). It was common ground that the amount still held in the trust account is $287,695 (Annexure A, line 7). I will make orders, however, that the first payment from the residual funds held will be to discharge a land tax liability of [Company H] of $23,691 — which I regard as a joint liability — which will reduce the available funds in the trust account to $264,004. …30.As noted, the parties did not seek orders altering the interests in property they owned before the relationship (Pool A) or their superannuation (Pool C). As a result, the controversy I must quell specifically concerns the Pool B property acquired during the relationship. Nonetheless, s. 79 directs my attention to all the parties’ property in determining what orders are appropriate, just and equitable. Further, the appropriate orders as to the Pool B property are informed by what property the parties own outside Pool B: their pre-relationship assets and superannuation.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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