Bertrand and Bertrand & Anor - [2020] FamCA 1051

FAMILY COURT OF AUSTRALIA

BERTRAND & BERTRAND AND ANOR

[2020] FamCA 1051

FAMILY LAW – PROPERTY – Interim distribution – Where the evidence has been concluded – Where the parties agree to the sale of a property and the distribution of the proceeds of sale – Where the agreement protects the interests of the parties and the second respondent – Orders.

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Where the husband and the wife agree that by way of interim spousal maintenance the husband will transfer shares to the wife – Where the second respondent opposes the agreed orders – Where the focus of the second respondent is to secure payment of the husband’s outstanding liability – Where the second respondent considers the transfer of shares may reduce the balance of the property pool - Whether it is proper to make the orders sought – Where the parties agree that pending a final determination the wife is unable to adequately support herself – Where the position of the second respondent will not be prejudiced – Orders.

FAMILY LAW – CHILD SUPPORT – Application for departure – Where the wife seeks a departure order – Where the wife’s substantive application seeks an order to relocate the children from Sydney to Melbourne – Where the travel costs which would be incurred if relocation is permitted have not been properly canvassed – Where the travel costs would be a relevant factor in respect of child support – Where final parenting matters have not been determined – Where it would be premature to consider a departure application.

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of a child – Where the mother seeks that the children spend Christmas with her –Where the parties and children had historically spent Christmas with the wife’s family each alternate year – Where the children spent last Christmas with the father – Where the wife expected that the children would spend Christmas with her family in Adelaide this year – Where the wife seeks that the children spend time with the husband before Christmas and in the new year – Where the orders the wife seeks would not adversely impact upon the children’s relationship with the husband – Orders.

Child Support (Assessment) Act 1989 (Cth) s 124
Family Law Act 1975 (Cth) ss 60CC, 72, 75(2), 79

Hall & Hall (2016) 257 CLR 490
Maroney & Maroney [2009] FamCAFC 45

APPLICANT:

Ms Bertrand

1ST RESPONDENT:

Mr Bertrand

2ND RESPONDENT:

Commissioner of Taxation

FILE NUMBER:

SYC

2440

2019

DATE DELIVERED:

10 December 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

13 & 20 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton SC

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

COUNSEL FOR THE 1ST RESPONDENT:

Mr Jackson

SOLICITOR FOR THE 1ST RESPONDENT:

Sharah & Associates Solicitors and Conveyancers

COUNSEL FOR THE 2ND RESPONDENT:

Mr Kasep

SOLICITOR FOR THE 2ND RESPONDENT:

Craddock Murray Neumann Lawyers

Orders

Sale 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 Bertrand and Bertrand & Anor

Details

AGLC: Bertrand and Bertrand & Anor [2020] FamCA 1051
Case: [2020] FamCA 1051
Decision Date: 10 December 2020

CaseChat Overview and Summary

In the matter of *Bertrand and Bertrand & Anor*, Berman J considered applications concerning property settlement, spousal maintenance, child support, and parenting arrangements. The primary dispute involved the husband and wife's agreement for the sale and distribution of proceeds from their jointly owned property, which was opposed by the second respondent. The court also addressed an interim spousal maintenance agreement between the husband and wife, a child support departure application by the wife, and a dispute regarding Christmas parenting time for the children.

The legal issues before the court included whether to approve the agreed orders for the sale and distribution of the marital home, considering the interests of the second respondent. The court also had to determine the propriety of making interim spousal maintenance orders by way of share transfer, again with regard to the second respondent's opposition. Furthermore, the court was asked to consider a child support departure application, which was linked to the wife's proposed relocation of the children, and to make orders regarding the children's Christmas time arrangements.

Berman J reasoned that the agreed orders for the sale of the property were appropriate, as they adequately protected the interests of all parties, including the second respondent. Regarding interim spousal maintenance, the court found that the proposed transfer of shares was proper, as the parties agreed the wife was unable to support herself and the second respondent's position would not be prejudiced. The court deemed the child support departure application premature, noting that travel costs associated with the proposed relocation had not been properly canvassed and final parenting matters remained undetermined. Finally, the court made orders for the children's Christmas time, reflecting historical arrangements and the children's best interests, ensuring the orders would not adversely impact their relationship with the father. The court ordered the sale of the property and the distribution of proceeds in a specified priority, after costs and the mortgage.

Orders

Orders of the court

Orders

Sale of Property

1. That Mr Bertrand (“the husband”) and Ms Bertrand (“the wife”) forthwith do all acts and things and sign all documents necessary to effect a sale of the property at J Street, Suburb C in the State of New South Wales ("the home") for the best price reasonably obtainable as follows:

1. (a) list the home for sale by not later than 1 February 2020 with L Property Agents and K Property Agents ("the agents"), with such sale to occur by way of public auction to occur not earlier than 4 weeks from the date the home is listed for sale;

1. (b) the reserve price for the purpose of such auction shall be the price mutually agreed upon between the husband and the wife in writing and, in the absence of agreement 2 days prior to the auction date, the parties will adopt the price set out in the agency agreement signed by the parties, subject to any updating advice of the agents in this respect;

1. (c) the husband and the wife shall each cooperate in every way with the agents including but not limited to:

1. (i) making all necessary keys available to the agents;

1. (ii) allowing inspection of the home at all reasonable times requested by the agents;

1. (iii) doing or saying nothing to hinder or prevent a sale being effected;

1. (iv) ensuring the home is in a neat and clean condition at the time of inspection by the agents and prospective purchasers; and

1. (v) signing all documents requested by the agents in relation to the listing of the home for sale, except a contract for sale which has not been authorised by the parties' solicitors.

1. (d) in the event the bidding at the auction does not reach the reserve price, the husband and the wife, or such of them as attend the auction, may negotiate with the highest bidders and any other interested person and effect a sale of the home at a price which is not more than 5 per cent below the reserve price, or at such other price as the husband and the wife agree upon in writing;

1. (e) if the home remains unsold, the husband and the wife are to do all acts and things and sign all documents necessary to immediately re-list the home for sale by private treaty at the reserve price (or such other price as is agreed between the husband and the wife in writing) with the agents, or either of them as agreed;

1. (f) the husband and the wife shall instruct Mr M to have the conduct of the sale or such other solicitor or conveyancer that the husband and wife agree upon in writing within 7 days of the date of the making of these Orders;

1. (g) the husband and the wife shall each execute a contract for sale in the form prepared by the solicitor having the conduct of the sale at the sale price;

1. (h) neither the husband nor the wife may confer on any agent without the consent of the other party any right to any sole or exclusive agency in respect of the home or to any commission.

2. At settlement of sale of the home, the proceeds of sale be paid in the following manner and priority:

2. (a) all costs and expenses of sale including legal costs and disbursements, agents' commission, advertising expenses and auction expenses;

2. (b) the amounts required to pay any outstanding municipal and water rates relevant to the home, as well as other usual and agreed conveyancing adjustments;

2. (c) the sum required to pay out and discharge the mortgage secured against the home, including any penalty interest or fees levied in respect of same;

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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