FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dawson & Barnaby [2024] FedCFamC2F 1102
File number: MLC 1455 of 2023 Judgment of: JUDGE CHAMPION Date of judgment: 16 August 2024 Catchwords: FAMILY LAW – Property – Where both parties had substantial property before the marriage and Husband had relatively greater assets than the Wife – Short relationship of approximately three years – Where three pool approach – First pool comprised of assets each party owned before the relationship and neither party sought to alter property in first pool – Where third pool comprised parties’ superannuation and neither party sought an order altering interest in superannuation in the third pool – Where property in the second pool comprised of property acquired during the relationship principally comprised of two pieces of real estate purchased to earn short term rental income – Finding that it was just and equitable to alter interests in the property in the second pool –Where Husband’s pre-relationship assets necessary for the parties to procure finance to purchase real estate – Where Wife made relatively greater contribution to the purchase of the real estate by increasing debt secured against her pre-relationship assets – Where no special rule applies to the assessment of contributions in a short marriage – Where contributions assessed 67.5%/32.5% in favour of the Wife – Section 75(2) – No further adjustment because of s. 75(2) factors Legislation: Family Law Act 1975 (Cth) ss. 4AA, 75, 79, 81, 106A Cases cited: Bachman & Self [2023] FedCFamC1A 50
Brandt & Brandt (1997) FLC 92-758
Cabbell & Cabbell [2009] FamCAFC 205
Candle & Falkner (2021) FLC 94-069
Clauson & Clauson (1995) FLC 92-595, 81,911
Fontana & Fontana [2018] FamCAFC 63
Frederick v Frederick (2019) FLC 93-900; [2019] FamCAFC 87
Gadhavi & Gadhavi (2023) 67 FamLR 174; [2023] FedCFamC1A 117
Hickey & Hickey & Attorney-General (Cth) (2003) FLC 93-143
In the marriage of Bushby (1988) FLC 91-919
Marcin & Marcin (2020) FLC 93-956
Norbis & Norbis (1986) 161 CLR 513
Petrellis & Petrellis [2023] FedCFamC1A 104
Q & Q [1999] FamCA 1314
Stanford v Stanford (2012) 247 CLR 108
Stella & Stella [2023] FedCFamC1F 1092
Trevi & Trevi (Re-Exercise) [2019] FamCAFC 51
Division: Division 2 Family Law Number of paragraphs: 189 Date of last submissions: 24 May 2024 Date of hearing: 16–17, 22 and 24 May 2024 Place: Melbourne Counsel for the Applicant: Mr McIntyre Solicitor for the Applicant: Bentleys Barristers and Solicitors Counsel for the Respondent: Mr Williams Solicitor for the Respondent: Carew Counsel Solicitors ORDERS
MLC 1455 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DAWSON
Applicant
AND: MR BARNABY
Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
16 AUGUST 2024
THE COURT ORDERS THAT:
Disbursement of funds held in Sayer Jones trust account
1.That not earlier than 30 days and not later than 60 days after the date of this order (60 days from the date of this order being the Due Date) the monies held in the…
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CaseChat Overview and Summary
The court examined the assets through the three-pool approach, considering the pre-relationship assets, the superannuation, and the assets acquired during the marriage. The pre-relationship assets and superannuation were not contested, with each party retaining their respective interests. However, the assets acquired during the marriage, primarily two pieces of real estate, were the focal point of the dispute. The court found that it was just and equitable to alter the interests in these properties, taking into account the husband's pre-marital assets which were crucial for procuring finance for the real estate purchases. The wife's contribution to the purchase, through increasing her debt against her pre-marital assets, was considered more significant. The court assessed the contributions at a ratio of 67.5% to 32.5% in favour of the wife. Given the short duration of the marriage, the court did not apply any special rules for short-term marriages, and no further adjustments were made under section 75(2) of the Family Law Act 1975 (Cth).
The court ordered the disbursement of funds held in the Sayer Jones trust account, requiring the wife to make a payment to the husband and the transfer of control of a company and associated trust from the husband to the wife. In the event of non-compliance, the court mandated the sale of one of the properties and the distribution of the proceeds. The court also addressed the payment of capital gains tax, engagement of an accountant, and the retention of specific properties by each party. An injunction was issued to prevent the wife from identifying the husband in any future social media posts. The orders aimed to finally determine the financial relationship between the parties and avoid further proceedings.
Orders
Orders of the court
MLC 1455 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS DAWSON
Applicant
AND:
MR BARNABY
Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
16 AUGUST 2024
THE COURT ORDERS THAT:
Disbursement of funds held in Sayer Jones trust account
1. That not earlier than 30 days and not later than 60 days after the date of this order (60 days from the date of this order being the Due Date) the monies held in the interest-bearing Controlled Monies Account with Sayer Jones be applied as follows:
(a) first, $23,691.04 to the State Revenue Office or such other amount as may be due as to land tax; and
(b) second, the balance to the Husband.
Wife’s payment to the Husband
2. That not later than the Due Date, the Wife make a payment to the Husband of $200,319 (Payment).
Transfer of control of Company H and the associated trust from the Husband to the Wife
3. That contemporaneously with and conditional on the Wife’s making of the Payment, the Husband shall do all such acts and things, in his capacity as the sole director of Company H, trustee for the Company H Trust, and appointer of the Company H trust:
(a) to resign as a director of Company H and appoint the Wife and/or her nominee in his stead;
(b) transfer all shares he owns in Company H to the Wife and/or her nominee; and
(c) resign as appointor and appoint the Wife and/or her nominee as the sole appointor of the Company H Trust.
4. That not later than the Due Date and conditional on the Wife making the Payment, the parties do all such acts and things as required to change the name of Company H and the Company H Trust to remove the Husband’s name from the company and Trust.
5. That in the event of dispute as to any matter as to the transfer of control of Company H and/or the Company H Trust under Orders 3–4 above, the parties have liberty to apply.
Default
6. In the event that the Wife does not pay the sum of $200,319 on or before the Due Date, the parties will do all such acts and things, and as to the Husband including in his capacity as the sole director of Company H, to list the Property E for sale forthwith and for the purpose of effecting the sale the following shall apply:
(a) the Property E shall be listed for sale by private treaty with Ms L of M Group;
(b) the Property E shall have a listing and reserve price as agreed and, failing agreement, $600,000;
(c) the parties shall facilitate the sale of the Property E including (without limiting the generality of the foregoing):
(i) making the keys available to the Agent;
(ii) making available to the Husband a key to enable the Husband to inspect the premises prior to sale;
(iii) allowing the inspection of the property at all reasonable times the Agent requests;
(iv) ensuring the property, including the grounds, are in a neat and clean condition at the time of inspection by the Agent and prospective purchasers;
(v) signing any documents the Agent requests in relation to the listing for the sale of the property;
(vi) removing any caveat lodged not less than seven days prior to settlement;
(vii) instructing the Agent to forward any report about the property and/or offers of sale to both parties.
7. That upon settlement of the sale of the property at Property E the proceeds of sale be applied as follows:
(a) firstly, to pay all costs, commissions and expenses of the sale;
(b) secondly, to discharge any other encumbrances affecting the Property E;
(c) thirdly, the sum of $20,000 be set aside for the purposes of winding up Company H and the Company H Trust and any funds leftover after the winding up be divided 67.5% to the Wife and 32.5% to the Husband;
(d) fourthly, to pay the Husband so much of the Payment as maybe outstanding plus interest pursuant to rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); and
(e) fifthly, the balance to the Wife.
Capital gains tax
8. That as soon as practicable each party pay their equal share of the outstanding capital gains tax arising from the sale of the property situate at Property F on the basis that the capital gain is distributed equally between the parties.
Engagement of an accountant as to Company H’s accounts
9. That the parties engage Mr N of O Firm (O Firm), or such other person as the parties agree in writing, to finalise the accounts of the Company H and the Company H Trust.
10. That the parties pay in equal shares O Firm for preparing accounts up to and including 30 June 2023 for Company H or the associated trust and or for the purposes of these proceedings.
11. If the Wife makes the Payment and the Husband transfers control of Company H and the associated trust to the Wife and/or her nominee, the Wife pay any expenses of O Firm for the preparation of accounts after 30 June 2023.
12. Alternatively to Order 11, if Company H and/or the Company H Trust is wound up the parties pay the reasonable professional expenses of O Firm as to the winding up of Company H and/or the Company H trust:
(a) first, by the application of the funds set aside under Order 7(c); and
(b) second, in the event those funds are exhausted, in equal shares.
Section 106A order
13. In the event that a party neglects, fails or refuses to execute a deed, document or instrument as required under these orders, an officer of the Federal Circuit and Family Court of Australia, in the Melbourne Registry, is hereby authorised, pursuant to section 106A of the Family Law Act 1975 (Cth), to do all acts and things necessary to give validity to the deed, document or instrument, including executing the deed, document or instrument on behalf of the party.
14. For the purpose of Order 13 above, an affidavit setting out the defaulting party’s failure to comply with the orders shall be sufficient evidence of that party’s neglect and default.
15. If either the Applicant or Respondent is required, as a consequence of a breach of the above order, to make an application to the Court under section 106A of the Family Law Act 1975 (Cth), then the defaulting party will be liable for the costs of the Application.
16. If a defaulting party refuses or neglects to sign or execute a document within 14 days of a written request to do so by the non-defaulting party, but such document is unable to be signed by a Registrar of the Court due to the requirements of PEXA, the non-defaulting party shall nominate a solicitor authorised to sign documents for PEXA transfers and such solicitor shall sign on behalf of the defaulting party upon written request from the non-defaulting party’s solicitor to do so upon provision of a sealed copy of this Order.
Property the Wife will retain
17. The Wife (or entities she may nominate) will retain the following property:
(a) subject to her making the Payment in Order 2 above, the real estate at Property E (Property E);
(b) all furniture or other chattels at Property E;
(c) any interest she has in Motor Vehicle 1;
(d) any membership she has in Club P;
(e) the real estate at Q Street, Suburb B;
(f) the real estate at R Street, Suburb D;
(g) the net proceeds of sale from S Street, Suburb C;
(h) any amount outstanding in any bank account in her name;
(i) any interest she has in any motor vehicle registered in her name;
(j) any investment in T Company;
(k) any interest she has in any entity which operates the business known as U1 Business;
(l) any interest she has in an entity which operates the business known as U2 Business (t/as V Business); and
(m) any superannuation in her name.
Property the Husband will retain
18. The Husband (or entities he may nominate) will retain the following property:
(a) real estate at W Street, Suburb J;
(b) any interest he has in Units at X Street, Suburb K;
(c) subject to orders 3- 5 above as to his shareholding in Company H, any shareholdings in his name;
(d) any amount outstanding in any bank account in his name;
(e) any interest he has in any motor vehicle registered in his name; and
(f) any superannuation in his name.
Injunction to remove social media posts
19. Pursuant to s. 114 of the Family Law Act 1975 (Cth), the Wife forthwith remove all social media posts that identify the Husband or the family court proceedings and is hereby be restrained by injunction from ever identifying the Husband in any future social media posts.
Miscellaneous
20. Unless otherwise specified in these orders, and save for the purpose of enforcing any monies due under these or any subsequent orders:
(a) each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b) each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(c) insurance policies remain the sole property of the owner/beneficiary named thereon;
(d) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(e) each party be solely liable for any liability, including any tax debt, in their names; and
(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
21. Pursuant to s. 81 of the Family Law Act 1975 (Cth), the parties intend these orders shall as far as practicable finally determine the financial (and other) relationship between them and avoid further proceedings between them.
Costs
22. Save as to costs, all extant applications are 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).
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
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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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