FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Barbieri & Barbieri [2025] FedCFamC1A 51
Appeal from: Barbieri & Barbieri (No 2) [2024] FedCFamC1F 686 Appeal number: NAA 322 of 2024 File number: SYC 6804 of 2020 Judgment of: MCCLELLAND DCJ, WILSON & JARRETT JJ Date of judgment: 31 March 2025 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where a 10 per cent s 75(2) adjustment was made in favour of the respondent – Where the appellant contended that he was not afforded procedural fairness to make submissions on the s 75(2) adjustment – Where the parties were afforded the opportunity to make submissions about the relevant issues – Where the appellant contends that the primary judge’s reasons were inadequate – Where the matters taken into account by the primary judge were clearly articulated and sufficiently described – Where the appellant contended that the s 75(2) adjustment was “manifestly excessive” – Where the orders made were not outside of the generous ambit within which reasonable disagreement is possible – Where the appellant contended that the primary judge failed to accord him procedural fairness on the form of the orders made – Where the form of the primary judge’s order was not materially different to the orders sought by the respondent – Where the form of the primary judge’s orders were within the parameters established by the parties’ positions – Appeal dismissed – Written submissions ordered on the question of costs. Legislation: Family Law Act 1975 (Cth) ss 75(2)(o), 79A Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
F Hoffmann-La Roche v Secretary of State for Trade and Industry [1975] AC 295
Field & Kingston [2021] FedCFamC1A 66
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lamereaux and Noirnot (2008) FLC 93-364; [2008] FamCAFC 22
McGregor & McGregor (2012) FLC 93-507; [2012] FamCAFC 69
National Companies & Securities Commission v News Corporation Ltd (1984) 156 CLR 296; [1984] HCA 29
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546; [1969] HCA 10
Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298; [1989] HCA 13
Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
Ritter & Ritter [2020] FamCAFC 86
Rollings & Rollings (2009) 230 FLR 396; [2009] FamCAFC 87
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Russell v Duke of Norfolk [1949] 1 All ER 109
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
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CaseChat Overview and Summary
The court held that the appellant was given procedural fairness to make submissions about the relevant issues. The primary judge's reasons were sufficiently clear and articulated, and the orders made fell within the generous ambit where reasonable disagreement is possible. The court further found that the form of the orders was not materially different from what the respondent sought and was within the parameters established by the parties' positions. The court rejected the appellant's claims regarding procedural fairness and the excessiveness of the adjustment. Consequently, the appeal was dismissed, and written submissions on the question of costs were ordered.
The final orders of the court were that the appeal NAA 322 of 2024 was dismissed, and specific timelines were set for the filing of submissions regarding costs. The respondent was required to file and serve any material and submissions as to costs by 14 April 2025, followed by the appellant on 28 April 2025. The respondent had until 5 May 2025 to file material in reply to the appellant's submissions. The question of costs was reserved unless otherwise addressed within the specified timeframes.
Orders
Orders of the court
NAA 322 of 2024
SYC 6804 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR BARBIERI
Appellant
AND:
MS BARBIERI
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, WILSON & JARRETT JJ
DATE OF ORDER:
31 MARCH 2025
THE COURT ORDERS THAT:
1. Appeal NAA 322 of 2024 is dismissed.
2. No later than 4.00 pm on 14 April 2025 the respondent make, file and serve any material and submissions as to costs.
3. No later than 4.00 pm on 28 April 2025 the appellant make, file and serve any material and submissions as to costs.
4. No later than 4.00 pm on 5 May 2025 the respondent make, file and serve any material strictly in reply to any material filed under Order 3 hereof.
5. Otherwise the question of costs be reserved.
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
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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