Barbieri & Barbieri

Case [2025] FedCFamC1A 51

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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Barbieri & Barbieri [2025] FedCFamC1A 51
Case
[2025] FedCFamC1A 51
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CaseChat Overview and Summary

The appeal in Barbieri & Barbieri involved the appellant, Mr Barbieri, and the respondent, Ms Barbieri, who had previously entered into consent orders regarding the division of their assets upon their separation and subsequent divorce. The primary dispute arose from the appellant's failure to disclose crucial information about the valuation of certain real estate units, leading the respondent to seek relief under section 79A(1)(a) of the Family Law Act 1975 (Cth). The central legal issues in the appeal concerned whether the primary judge adequately considered the appellant's procedural fairness, the appropriateness of a 10% adjustment made in favour of the respondent under section 75(2), and the fairness of the overall orders made. The appellant argued that he was not given procedural fairness to make submissions on the section 75(2) adjustment, that the reasons provided by the primary judge were inadequate, and that the adjustment was manifestly excessive.

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

For the reasons that follow, the appellant does not make out his grounds of appeal and the appeal must be dismissed.BACKGROUND The appellant is presently 68 years old. The respondent is presently 59 years old. The primary judge made no finding about when the parties commenced their relationship. He noted that there was a dispute about when they commenced cohabitation (the appellant contending for a date in 1998 and the respondent for a date in 1997). He accepted the respondent’s case and found that cohabitation commenced in 1997. They married in 1998, separated on a final basis in January 2018 and divorced by order made in 2020. The appellant has since remarried. The respondent has not re-partnered. Following their separation, the appellant commenced an application for property adjustment. Despite some complaint by the respondent about the nature and quality of the appellant’s financial disclosure during that proceeding, it was finalised by consent orders made on 16 September 2022. Critical to the respondent’s decision to settle that application was the value of two real estate units at Suburb D held by the appellant. The parties’ settlement negotiations were conducted on the basis that the appellant would retain the Suburb D units and he would make a cash payment to the respondent. At the time of the negotiations, the valuation evidence in respect of these units was outdated, as both parties knew. However, even before the negotiations had commenced, the appellant was investigating selling the Suburb D units. To that end, in September 2021, he obtained a market appraisal indicating that the units might sell for a much higher value than that which was being used by the parties in their negotiations. He did not disclose that appraisal to the respondent. On the very day the consent orders were sent to the Court for consideration, the appellant executed a sales agency agreement that identified that the Suburb D units had a much higher value than that assumed for the purposes of the parties’ negotiations. Soon after the consent orders were made, the appellant sold the properties for a sum much greater than the value ascribed to it by the parties in the settled application. Upon learning of this, the respondent commenced the application from which this appeal emanates. In it, she sought orders that the September 2022 consent orders be set aside pursuant to s 79A(1)(a) of the Act and in their stead there be orders dividing what she contended was the nett value of the parties’ assets, equally between the parties. She asserted that there had been a miscarriage of justice by reason of fraud, the failure to disclose relevant information and the giving of false evidence by the appellant sufficient to justify relief pursuant to s 79A(1)(a) of the Act. The appellant sought the dismissal of the respondent’s initiating application. The application was tried over five hearing days in mid-2024. The primary judge delivered reasons and orders on 1 November 2024. THE PRIMARY JUDGE’S REASONS

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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