FAMILY LAW – PROPERTY – compromise of parenting application – hard swearing parenting case – oath-on-oath conflict of evidence – resolution of parenting.
FAMILY LAW – FAMILY VIOLENCE ALLEGATIONS – none proved – no evidence linking allegations of family violence to contributions.
In the Marriage of Doherty (1995) 20 Fam LR 137 In the Marriage of Ferguson (1978) 4 Fam LR 312 In the Marriage of Hill (2005) 32 Fam LR 552 In the Marriage of Kennon (1997) 22 Fam LR 1 In the Marriage of Mallet (1984) 156 CLR 605 In the Marriage of Myerthall (1977) 3 Fam LR 11,324 In the Marriage of Scott (1994) 17 Fam LR 420
In the Marriage of Soblusky (1976) 2 Fam LR 11,528
In the Marriage of Townsend (1994) 18 Fam LR 505 In the Marriage of Waters (1981) 6 Fam LR 871
In the Marriage of Waters & Jurek (1995) 20 Fam LR 190
[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.
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AGLC
BARBERIS & BARBERIS [2019] FamCA 386
Case
[2019] FamCA 386
Decision Date
CaseChat Overview and Summary
In *Barberis & Barberis*, the Honourable Justice Wilson considered a property dispute between the parties, which arose in the context of a compromised parenting application. The case involved a significant conflict of evidence, described as "oath-on-oath," concerning parenting matters.
The primary legal issue before the court was the resolution of the parenting dispute, given the lack of evidence to substantiate allegations of family violence. The court was required to determine how these unproven allegations should be treated in the context of the overall property settlement.
Justice Wilson's reasoning focused on the fact that no family violence was proved, and crucially, no evidence was presented linking any alleged family violence to the parties' contributions to the marriage. Consequently, the court found that the unproven allegations had no bearing on the property division. The court ordered that the parties bring in a minute giving effect to the reasons for judgment by a specified date, and all other applications were dismissed.
Orders
Orders of the court
1.
On or before 4 pm on 12 July 2019 the parties bring in a minute that gives effect to these reasons.
2.
All applications are otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.