Barbieri & Barbieri
[2024] FedCFamC1F 173
•21 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Barbieri & Barbieri [2024] FedCFamC1F 173
File number(s): SYC 6804 of 2020 Judgment of: SCHONELL J Date of judgment: 21 March 2024 Catchwords: FAMILY LAW – PROPERTY – s 79A of the Family Law Act 1975 (Cth) – Setting aside consent orders – Bifurcated hearing – Where the wife submitted that the Court should determine whether there had been a miscarriage of justice, and whether it should exercise its discretion to set aside prior Consent Orders – Where there was no evidence about the current value of, or what formed part of, the asset pool – Where the wife proposed that the Court proceed with her s 79A application by way of a bifurcated hearing – Where this would run the risk that another judge would need to determine what s 79 order would be appropriate – Where this is not a proper use of the Court’s or the community’s resources – Where this proposal departed from established jurisprudence and the Court’s directions, which did not set down the matter for a bifurcated hearing – Where the trial was adjourned. Legislation: Family Law Act1975 (Cth), s 79 Cases cited: In the Marriage of Oastler (1989) 16 Fam LR 674
In the marriage of Patching (1994) 18 FamLR 675
Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 6 March 2024 Place: Sydney Counsel for the Applicant: Mr Cummings SC Solicitor for the Applicant: Edwards Moloney Family Law Counsel for the Respondent: Mr Cox SC, Mr O’Brien Solicitor for the Respondent: Russell Kennedy Lawyers NSW ORDERS
SYC 6804 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BARBIERI
Applicant
AND: MR BARBIERI
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
6 MARCH 2024
THE COURT DIRECTS THAT:
1.The proceedings be adjourned.
2.The matter is fixed for hearing before me for four days commencing on Tuesday, 6 August 2024.
3.The parties shall agree upon and file and serve by no later than 14 days prior to the hearing a Balance Sheet.
4.The costs of both parties are 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Barbieri & Barbieri has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE SCHONELL:
By Orders made 12 May 2023 the Court listed for hearing, for three days commencing 6 March 2024, the wife’s application pursuant to s 79A of the Family Law Act1975 (Cth) (“Act”). On the first day of the hearing, the Court adjourned the proceedings to 6 August 2024, in circumstances where the Court determined that it was not appropriate to conduct a bifurcated hearing of the s 79A claim. The Court indicated it would deliver reasons for its determination in due course. These are those reasons.
On 16 September 2022, Orders were made by consent pursuant to s 79 of the Act (“Consent Orders”). Subsequent to the making of the Consent Orders the wife filed, on 7 December 2022, an Initiating Application seeking to set aside the Consent Orders. The wife’s application contended that there had been a miscarriage of justice by reason of fraud, duress, or suppression of evidence on the part of the husband.
Directions were made for the filing of affidavits and Case Outline documents.
On 27 February 2024, the wife filed a Case Outline which recorded, at paragraph 4: “this matter has been listed for the hearing of the threshold issue as to relief under s 79A.” The matter was not listed for determination of any threshold issue.
The Minute of Order attached to the wife’s Case Outline sought orders pursuant to s 79A(1)(a) of the Act that the Consent Orders be set aside or, in the alternative, varied, and the Court make further orders. Attached to the wife’s Case Outline was a Balance Sheet that recorded merely the wife’s contentions as to the value of assets with no corresponding contentions as to value by the husband. The husband, in his Case Outline, sought a dismissal of the wife’s application. He did not propose any alternative relief. He did not annex a Balance Sheet.
At the commencement of the hearing, the Court enquired of senior counsel for both parties as to what actually the parties were asking the Court to hear. The wife, through her senior counsel, sought to amend the orders in her Case Outline, seeking that the Court only proceed to hear whether there had been a miscarriage of justice and whether the Court, in its discretion, should set aside the orders. The wife proposed the Court not determine what order under s 79 of the Act should be made, as the parties were not in agreement as to what constituted the pool of assets.
By necessity, that aspect of her application would be determined at a later hearing. There is also the possibility that it may have to be heard by another judge, depending on what findings were made.
Senior counsel for the husband seemed to support the position proposed by senior counsel for the wife, albeit he did not strenuously argue for such a position.
Senior counsel for both parties informed the Court that the parties would not, even if given time, be able to reach agreement about the pool of assets for division.
In In the marriage of Patching (1994) 18 FamLR 675 at 677 (“Patching”) the Full Court identified that an application pursuant to s 79A involves four steps:
…namely whether there had been a suppression of evidence or “other circumstance” as alleged by the husband, whether that amounted to a miscarriage of justice, whether the court, in its discretion, should “vary the order or set the order aside” and whether it should make another order under s 79.
(Citation omitted).
Their Honours thereafter referred to the Full Court’s decision in In the Marriage of Oastler (1989) 16 Fam LR 674 at 678 where a differently constituted Full Court emphasised that it is generally preferable to deal with all the steps in the one hearing. Their Honours went on to record the following:
The reasons for that are obvious, namely that even if the court concludes that there have been circumstances which amount to a miscarriage of justice it must then consider whether in all the circumstances it should exercise its discretion to vary or set aside the orders and/or make a new s 79 order. In exercising that discretion it will have regard to, inter alia, the degree and nature of the miscarriage in question, any delay, alterations in the parties’ positions in the meantime, and the extent to which, if at all, it is now appropriate to vary the original orders…
In the matter the subject of the appeal in Patching at 678, the parties approached the matter by conducting a bifurcated hearing. Their Honours observed, in relation to that bifurcated hearing, that:
The procedure did in fact cause difficulty in this case because it meant that his Honour considered not only the question of a miscarriage of justice but also the discretion to set aside the original orders in a vacuum as it were, that is, without having the additional material against which to determine whether it was a proper exercise of discretion to do so and what other orders would be appropriate.
Later their Honours observed, referencing the trial judge’s determination to exercise a discretion to vary or set aside the orders, as follows:
The difficulty about that is that he lacked the background circumstances upon which he could legitimately have done so, that is, he knew nothing about the then existing financial circumstances of the parties and their financial history in the meantime.
…
Had his Honour had the benefit of the additional information it is doubtful whether he would have exercised his discretion to set aside the orders notwithstanding that he was satisfied that there had been a non-disclosure of the wife’s interest. … the discretion under s 79A is not to be exercised lightly and must be done against the whole of the relevant facts.
Whilst in the subject proceedings, the parties had adduced some evidence of their contributions subsequent to the making of the Consent Orders, there was no evidence as to the current value of the assets held by each of the parties. There was no agreement as to a balance sheet. Adopting the caution expressed in Patching, I am satisfied that it would be inappropriate to embark upon a bifurcated hearing of the type proposed by the parties. Such bifurcated hearing runs the risk that another judge may have to determine what s 79 orders are appropriate. That is not a proper use of the Court’s or the community’s resources. The parties have chosen to depart from the established jurisprudence, and from the directions the Court made which was to set down for hearing the wife’s application pursuant to s 79A of the Act. The directions did not anticipate, consistent with the wife’s then final relief, a bifurcated hearing.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 21 March 2024
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