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
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
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
That the appeal be allowed.
That the orders made by O’Reilly J on 26 November 2003 be set aside.
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.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Barker v Barker
Sign in free to access the full text
Details
AGLC
Barker v Barker [2007] FamCA 13
Case
[2007] FamCA 13
Decision Date
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.