Barker v Barker

Case [2007] FamCA 13


FAMILY COURT OF AUSTRALIA

BARKER & BARKER [2007] FamCA 13

PROPERTY – section 79A – application to vary or set aside consent order – miscarriage of justice by reason of suppression of evidence – miscarriage of justice by reason of any other circumstance – where the husband failed to disclose an offer to purchase a property of the parties prior to negotiating terms of settlement – where property subsequently sold for a substantially higher price than that at which it was valued – where husband claimed he believed the offer was disingenuous – whether the husband had an obligation to disclose the offer to the wife – whether a belief as to the genuineness of the offer is a subjective or objective belief – appeal allowed

Family Law Act 1975 (Cth), s 79A(1)(a)

Molier and Van Wyk (1980) FLC ¶90-911
Public Trustee (as executor of the estate of Gilbert) v Gilbert (1991) FLC ¶92-211
[M] & [M] [2003] FamCA 1304
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55
Mulley & Marney v Manifold (1959) 103 CLR 341
Suiker & Suiker (1993) FLC ¶92-436

Harris v Caladine (1991) FLC ¶92-217
Morrison v Morrison (1995) FLC ¶92-573
Burns v Burns (2002) EWCA Civ 1258
Livesey v Jenkins [1985] 1 All ER 106
Bigg v Suzi (1998) FLC ¶92-799
Holland v Holland (1982) FLC ¶91-243
Gebert v Gebert (1990) FLC 92-137
Blake & Blake [2007] FamCA 10
Weatherall and Weatherall and Others (2006) FLC ¶93-261
Prowse and Prowse (1995) FLC ¶92-557

APPELLANT: BARKER
RESPONDENT: BARKER
FILE NUMBER: BRF 1129 of 2003
APPEAL NUMBER: NA 64 of 2004
DATE DELIVERED: 24 JANUARY 2007
PLACE DELIVERED: MELBOURNE
JUDGMENT OF: BRYANT CJ, MAY AND BOLAND JJ
HEARING DATE: 16 FEBRUARY 2005
LOWER COURT JURISDICTION: FAMILY COURT OF AUSTRALIA
LOWER COURT JUDGMENT DATE: 21 SEPTEMBER 2004
LOWER COURT MNC: [2004] FamCA 863

REPRESENTATION

COUNSEL FOR THE APPELLANT: MR T NORTH SC
SOLICITOR FOR THE APPELLANT: HOPGOOD GANIM LAWYERS
COUNSEL FOR THE RESPONDENT: MR M BARTFELD QC
SOLICITOR FOR THE RESPONDENT: BARRY & NILSSON LAWYERS

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Barker v Barker.

Orders

  1. That the appeal be allowed.

  2. That the orders made by O’Reilly J on 26 November 2003 be set aside.

  3. That the Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs incurred by the appellant wife in relation to the appeal.

  4. That the Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it…

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Barker v Barker [2007] FamCA 13
Case
[2007] FamCA 13
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CaseChat Overview and Summary

In *Barker v Barker*, the Full Court of the Family Court of Australia considered an appeal concerning an application to set aside a consent order made under section 79A(1)(a) of the *Family Law Act 1975* (Cth). The appellant sought to overturn an earlier property settlement order, alleging that it was obtained by fraud.

The primary legal issue before the Full Court was whether the appellant had established the necessary grounds to set aside the consent order under section 79A(1)(a). This involved determining whether the consent order was obtained by fraud, or whether there had been a miscarriage of justice due to the circumstances under which the order was made.

The Court analysed the evidence presented by the appellant regarding the alleged fraud. It applied the principles established in cases concerning the setting aside of consent orders, emphasising the high threshold required to prove fraud and the importance of finality in litigation. The Court found that the appellant had failed to discharge the onus of proving that the consent order was obtained by fraud, and therefore, the grounds for setting aside the order under section 79A(1)(a) were not met.

Consequently, the Full Court dismissed the appeal and upheld the original consent order.

Orders

Orders of the court

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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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