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Barnell & Barnell [2020] FamCAFC 102

Thursday 19th November 2020

By: Georgina Gregory, Director

Barnell & Barnell [2020] FamCAFC 102 

In this Full Court decision, the Wife was appealing against a decision of a Judge in the Family Court of Western Australia, who had made orders providing for a 25% adjustment to the Husband, based on his contribution of a property. At the Trial, the property in question was valued at $340,000 and represented 36% of the net assets available for division between the parties ($941,096).

In appealing against this decision, the Wife contended that the Trial Judge had erred in making this adjustment of 25% in the Husband’s favour based on contributions.

The Husband and Wife commenced cohabitation in 1995, married in 1996 and separated in 2016. There were two children of the marriage aged 22 and 16, both of whom lived with the Wife.

At the commencement of cohabitation, the Husband had equity in the family home of approximately $58,000. He also had a half interest in “property B”, after selling the other half of this property for $110,000 in December 1995.

During the relationship, the Wife had received gifts from her family of approximately $70,000.

The Full Court observed from the Reasons for Judgment of the Trial Judge, that the Trial Judge had treated the parties’ respective contributions to property as equal, but had given separate consideration to the Husband’s financial contribution to “property B”.

The Full Court noted the importance of ensuring “the myriad of other contributions” and “The duration over which, and circumstances in which, the miscellany of other Section 79(4) contributions were made, is not accorded a subsidiary role”. The Full Court also observed that it was important for the Trial Judge to “weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation”.

The Full Court considered two other recent Full Court decisions, namely Hurst & Hurst [2018] and Jabour & Jabour [2019] – in both of these decisions the Full Court considered the correct approach to the assessment of contributions in a long marriage where property or capital is introduced by one party.

In the Hurst decision, the Full Court observed that, “isolating indirect contributions to but one part of the property interests of the parties in the context of a global assessment of contributions risks ignoring significant contributions made by both parties that do not have a nexus with that particular property.  We consider, with respect, that Her Honour did not heed that risk.”

The Full Court also referred to the Judgement of Jabour, in which decision a comprehensive review of the authorities, including Hurst was undertaken by the Full Court in that case, in relation to the principles to be applied when assessing contributions generally and the emphasis upon casing involving a disparity between the parties as to capital introduced by them.  The Full Court in Barnell observed that, in Jabour, the Full Court stated [at 86] “we consider that by quarantining property A from the ‘myriad of other contributions made by both parties throughout the course of the relationshipHer Honour fell into the difficulty set out in Hurstthis is because those contributions were isolated from and weighed against the contribution of that property, rather than it being one of the myriad of contributions taken into account.”

In conclusion, the Full Court in Barnell found that the Trial Judge had erred by isolating the B property and applying an adjustment of 25% between the parties as to their contribution based entitlements, because of quarantining the B property.  The Full Court determined that the primary Judge fell into the same error as had been made by the Trial Judge in both Hurst and Jabour and that the Barnell Trial Judges’s approach had resulted in the Wife’s contributions being accorded “a subsidiary role”.

OUTCOME:

The Appeal was allowed.  The case was remitted for rehearing by a Judge other than the Primary Judge.

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