Berlot & Thereciana - [2007] FMCAfam 472

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BERLOT & THERECIANA

[2007] FMCAfam 472

FAMILY LAW – Property – full and frank disclosure – undisclosed bank account opened post-separation – child support as section 75(2) factor – husband living overseas.

CHILD SUPPORT – Application for departure order – application for lump sum child support.

Family Law Act 1975, ss.75, 79
Child Support (Assessment) Act 1989, s.116

CK & SML [2004] FMCAfam 119
Kannis & Kannis [2002] FamCA 1150
Pierce v Pierce (1999) FLC 92-844

Applicant:

HERMANN SIGWIN BERLOT

Respondent:

NETTJI THERECIANA

File Number:

NCM 3200 of 2003

Judgment of:

Mowbray FM

Hearing dates:

14, 15, 21 December 2005

15 February 2006

Date of Last Submissions:

29 May 2006

Delivered at:

Canberra

Delivered on:

16 July 2007

REPRESENTATION

Counsel for the Applicant:

Mr S Austin

Solicitors for the Applicant:

Cunningham and Adam

Counsel for the Respondent:

Ms A Tonkin

Solicitors for the Respondent:

Blaxland, Mawson and Rose

ORDERS

The husband pay to the wife the sum of $23,800 within 28 days.
The husband do all acts and things and execute all documents to transfer to the wife all of the husband’s right, title and interest in the property situated at 10 Havelock Street, Mayfield in the State of New South Wales, comprising Certificate of Title Lot 6 of Section F in Deposited Plan 3626.
The parties do all acts and things and execute all necessary documents to sell the property and improvements situated at 409/2 Keem Street, Trinity Beach in the State of Queensland, comprising Certificate of Title Lot 9 in Survey Plan 106699 with Title Reference 50243141 on the conditions set out in these Orders.
For the implementation of Order 3:
(a)The property be listed for sale within 14 days.
(b)The property be listed for sale by private treaty with a licensed real estate agent agreed between the parties, and in default of agreement with an agent chosen by ballot from the choices of the parties.
(c)The listing price be as agreed between the parties, and in default be the listing price nominated by the listing agent.
(d)In the event of the property not being sold within three months the property be put to auction on the following terms:
(i)The auctioneer be agreed between the parties, and in default of agreement with the auctioneer chosen by ballot from the choices of the parties.
(ii)The auction take place within six weeks of the deadline date for sale by private treaty.
(iii)The reserve price be agreed between the parties, and in default of agreement the reserve price nominated by the auctioneer.
(e)In the event of the property not being sold by auction or private negotiation within a further seven days the parties put the property to successive auctions within further six week periods until sold, upon the same terms and conditions as applied to the first auction.
Upon completion of the sale of the Trinity Beach property the proceeds of the sale be applied as follows:
(i)To pay all costs, commissions, expenses of…

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 Berlot & Thereciana

Details

AGLC: Berlot & Thereciana [2007] FMCAfam 472
Case: [2007] FMCAfam 472
Decision Date: 16 July 2007

CaseChat Overview and Summary

The case of Berlot & Thereciana involved a dispute between the parties regarding undisclosed financial assets post-separation, including child support obligations. The case was heard in a family law court. The primary issue before the court was whether the husband had made full and frank disclosure of his financial circumstances, particularly with respect to a bank account opened after separation, and the implications for child support and property distribution.

The court determined that the husband had not fully disclosed his financial situation, including a bank account opened post-separation. The undisclosed account had an amount of $23,800 which the court ordered the husband to pay to the wife within 28 days. The court further directed the transfer of property interests and the sale of another property under specific conditions, including the application of sale proceeds to discharge debts, child support arrears, and to establish a joint interest-bearing account for the parties. The court also addressed the husband's child support obligations and set out provisions for the payment of any future arrears or lump sum child support from the joint account. The orders concluded with provisions for the distribution of remaining sale proceeds and the division of other assets.

In summary, the court ordered the husband to pay a lump sum, transfer property interests, and adhere to specific sale conditions for another property. The court also set out detailed instructions for the application of sale proceeds and established provisions for future child support obligations and the distribution of remaining assets. The parties were granted liberty to apply for further orders regarding the implementation of these directives.

Orders

Orders of the court

The husband pay to the wife the sum of $23,800 within 28 days.

The husband do all acts and things and execute all documents to transfer to the wife all of the husband’s right, title and interest in the property situated at 10 Havelock Street, Mayfield in the State of New South Wales, comprising Certificate of Title Lot 6 of Section F in Deposited Plan 3626.

The parties do all acts and things and execute all necessary documents to sell the property and improvements situated at 409/2 Keem Street, Trinity Beach in the State of Queensland, comprising Certificate of Title Lot 9 in Survey Plan 106699 with Title Reference 50243141 on the conditions set out in these Orders.

For the implementation of Order 3:

(a) The property be listed for sale within 14 days.

(b) The property be listed for sale by private treaty with a licensed real estate agent agreed between the parties, and in default of agreement with an agent chosen by ballot from the choices of the parties.

(c) The listing price be as agreed between the parties, and in default be the listing price nominated by the listing agent.

(d) In the event of the property not being sold within three months the property be put to auction on the following terms:

(i) The auctioneer be agreed between the parties, and in default of agreement with the auctioneer chosen by ballot from the choices of the parties.

(ii) The auction take place within six weeks of the deadline date for sale by private treaty.

(iii) The reserve price be agreed between the parties, and in default of agreement the reserve price nominated by the auctioneer.

(e) In the event of the property not being sold by auction or private negotiation within a further seven days the parties put the property to successive auctions within further six week periods until sold, upon the same terms and conditions as applied to the first auction.

Upon completion of the sale of the Trinity Beach property the proceeds of the sale be applied as follows:

(i) To pay all costs, commissions, expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the property.

(ii) To discharge any mortgage secured on the property.

(iii) To discharge any mortgage secured on the Mayfield property.

(iv) To discharge all child support arrears and penalties in respect of the child Monika Berlot born 10 October 1995.

(v) To deposit $25,000 into an interest bearing bank account in the names of each of the parties with both parties to sign withdrawals.

(vi) To pay the balance to the husband.

If the husband fails to pay his child support obligations for Monika as assessed under the Child Support (Assessment) Act 1989 the wife may apply for an order that the arrears be paid out of the monies referred to in Order 5(v) or that all or part of those monies be applied to lump sum child support.

Subject to Order 6 the parties take all steps necessary to pay the monies referred to in Order 5(v) to the husband when Monika attains the age of 18 years.

Except as otherwise specified in these orders, each party be solely entitled to any interest in property, including any chattels, superannuation and choses in action, held in the name of that party.

Each party have liberty to apply on seven days notice on matters concerning the implementation of these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.