Gilliam & Barre (No 2) - [2022] FedCFamC1F 677

Federal Circuit and Family Court of Australia
(DIVISION 1)
Gilliam & Barre (No 2) [2022] FedCFamC1F 677

File number(s): SYC 342 of 2019

Judgment of: HARPER J

Date of judgment: 7 September 2022

Catchwords: FAMILY LAW – PROPERTY – De facto relationship of less than two years – Wife seeks declaration under s 90RD of the Family Law Act 1975 (Cth) and orders for property adjustment under s 90SM – Where property pool is modest – Where husband is bankrupt – Where husband has some superannuation – Where both parties have made contributions – Where wife would suffer a serious injustice if an order for property adjustment under s 90SM is not made.

Legislation: Family Law Act 1975 (Cth) ss 90SB(1)(c), 90SM

Cases cited: Lee & Hutton (2013) 50 Fam LR 322; [2013] FamCA 745

Division: Division 1 First Instance

Number of paragraphs: 14

Date of hearing: 24 August 2022

Place: Sydney

The Applicant: Litigant in Person

The Respondent: Litigant in Person
ORDERS

SYC 342 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS GILLIAM

Applicant

AND:
MR BARRE

Respondent

order made by:

HARPER J

DATE OF ORDER:

7 september 2022

THE COURT NOTES THAT:
A.The Court finds that a failure to make an order under s 90SM of the Family Law Act1975 (Cth) would result in serious injustice to the Applicant Wife.

THE COURT ORDERS THAT:
1.The proceedings be stood over to 28 September 2022 at 9.30 am for mention.

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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gilliam & Barre has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:

In these proceedings, I delivered judgment on 4 July 2022 on the question of the existence of a de facto relationship between the wife and the husband: Gilliam & Barre [2022] FedCFamC1F 465 (“the substantive judgment”). These reasons follow from the substantive judgment, and should be read with it.
I found a de facto relationship existed for a period of less than two years. I also found that the Applicant Wife (“the wife”) made substantial contributions of the kind mentioned in ss 90SM(4)(a), (b), and (c) of the Family Law Act 1975 (Cth) (“the Act”), during the period of the said de facto relationship. However, for the reasons explained in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gilliam & Barre (No 2)

Details

AGLC: Gilliam & Barre (No 2) [2022] FedCFamC1F 677
Case: [2022] FedCFamC1F 677
Decision Date

CaseChat Overview and Summary

The case of Gilliam & Barre (No 2) involved a dispute between the Applicant, Ms Gilliam, and the Respondent, Mr Barre, regarding property adjustment under the Family Law Act 1975 (Cth) following the dissolution of their de facto relationship. The Federal Circuit and Family Court of Australia (Division 1) presided over the matter, with Justice Harper delivering the judgment on 7 September 2022. The primary issue before the Court was whether the wife would suffer serious injustice if an order for property adjustment under section 90SM of the Family Law Act was not made. The wife argued that such an order was necessary due to her substantial contributions to the relationship and the husband's bankruptcy, which significantly limited the available asset pool.

Justice Harper found that the wife had indeed made substantial contributions during the de facto relationship, which was less than two years in duration. However, the Court also acknowledged the husband's contributions and the limitations imposed by his bankruptcy. The Court was tasked with balancing these factors to determine if the wife would suffer serious injustice without a property adjustment order. The wife's submissions highlighted her financial sacrifices and the husband's failure to repay a significant loan, which she claimed had left her financially dependent and vulnerable. The husband, on the other hand, argued that both parties had contributed to the relationship, and his bankruptcy further complicated the asset distribution.

The Court concluded that if no property adjustment order was made, the wife would indeed suffer serious injustice. This finding was based on the relatively modest asset pool available, the husband's bankruptcy, and the wife's substantial contributions to the relationship. The Court noted the wife's desire for a property adjustment of approximately $400,000 but found it difficult to justify such an amount given the husband's contributions and the overall circumstances. The Court emphasised the need for the parties to consider resolving their dispute amicably, given the husband's insolvency and the limited funds available in his bankrupt estate. The proceedings were stood over to allow the parties to discuss and propose a finalisation strategy.

Orders