BARBERIS & BARBERIS

Case [2019] FamCA 386


FAMILY COURT OF AUSTRALIA

BARBERIS & BARBERIS [2019] FamCA 386

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.

Evidence Act 2004, s 140(2)(c)
Family Law Act 1975, ss 75, 79, 117

Abalos v Australian Postal Commission (1990) 171 CLR 167
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1
Amador & Amador (2009) 43 Fam LR 268
Barkley & Barkley (1976) 1 Fam LR 11,554
Bevan & Bevan (2013) 49 Fam LR 387
Britt v Britt (2017) 56 Fam LR 526
Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842
Calder & Calder (2016) 56 Fam LR 1
Coghlan v Cumberland [1898] 1 Ch 704
Dearman, Owners of SS Hontestroom v Owners of SS Sagaporack; SS Hontestroom v SS Durham Castle [1927] AC 37
Devries v Australian National Railways Commission (1993) 177 CLR 472
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Fox v Percy (2003) 214 CLR 118
Galea v Galea (1990) 19 NSWLR 263
Gillard & Gillard [2016] FamCA 841

Husain v O & S Holdings (Vic) Pty Ltd [2005] VSCA 269

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

In the Marriage of Zappacosta (1976) 2 Fam LR 11,214
Ismail v Elfar [2011] FamCA 716
Levinge v Director of Custodial Services (1987) 9 NSWLR 546
Lovell v Lovell (1950) 81 CLR 513
Maine & Maine (2016) 56 Fam LR 500
NHC v RCH (2004) 32 Fam LR 518
Paterson v Paterson (1953) 89 CLR 212
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362
S & S [2003] FamCA 905
Spence & Spence [2008] FamCA 263
Stanford v Stanford (2012) 247 CLR 108
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liquidation (1999) 73 ALJR 306
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107
Vass & Vass (2015) 53 Fam LR 373
Warren v Coombs (1979) 142 CLR 531
Whelan & Whelan [2010] FamCA 530

APPLICANT: Mr Barberis
RESPONDENT: Ms Barberis
INDEPENDENT CHILDREN’S LAWYER: Ms M Lonergan
FILE NUMBER: MLC 7143 of 2018
DATE DELIVERED: 19 June 2019
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: The Honourable…

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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.

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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