Sulo and Colpetti - [2010] FamCA 493

FAMILY COURT OF AUSTRALIA

SULO & COLPETTI

[2010] FamCA 493

FAMILY LAW – PROPERTY – debts to relatives that are statute barred – contributions – s 79(4)(d) - (g) matters – just and equitable alteration

Family Law Act 1975 (Cth)

Biltoft & Biltoft (1995) FLC 92-614
Chidiac v Maatouk [2010] NSWSC 386
Jones & Dunkel (1959) 101 CLR 298
Ogilvie v Adams [1981] VR 1041
Robb & Robb (1995) FLC 92-555
Young v Queensland Trustee Ltd (1956), 99 CLR 560

APPLICANT:

Ms Sulo

RESPONDENT:

Mr Colpetti

FILE NUMBER:

SYF

2543

2006

DATE DELIVERED:

18 June 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

10 - 14 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Johnston

SOLICITOR FOR THE APPLICANT:

Simon Diab & Associates

SOLICITOR FOR THE RESPONDENT:

Litigant in person

Orders

Pursuant to s 79 Family Law Act1975 (Cth), an order be made in accordance with paragraphs 2 and 5 below.
The parties forthwith do all acts and things and execute all documents necessary to authorize Simon Diab of Simon Diab & Associates to release to the wife the sum equivalent to 53 percent and release to the husband the sum equivalent to 47 percent of all funds held in the controlled monies account for the parties, including any accumulated interest (“the controlled monies account”).
The husband pay to R the sum of $20,000 from monies that he receives from the controlled monies account.
The husband indemnify the wife in relation to any liability to W Realty arising out of their tax invoice dated 3 September 2007 and the husband attend to the payment of that invoice (if he has not already done so).
Each party be declared the sole and beneficial owner of all other items of property in their respective possession custody or control including but not limited to superannuation entitlements.
In the event that either party shall fail, neglect or refuse to execute any deed, instrument or document to give validity and effect to these orders then upon the other party filing an affidavit setting out such failure, neglect or refusal then a Registrar or a Deputy Registrar of the Sydney Registry of the Court is hereby appointed pursuant to section 106A of the Family Law Act to execute any such deed, instrument or document in the name of the party who defaults and to do all things necessary to give validity to the operation of the deed, instrument or document.
The parties have liberty to apply on 7 days notice in respect of the implementation of these orders.
The husband pay to the Child Support Agency the sum of $20,000 from monies that he receives from the controlled monies account and that that payment is to be treated by the Agency as a credit against liabilities the husband has or will have for the payment of periodic child support for G born … February 1996.

IT IS NOTED that publication of this judgment under the pseudonym Sulo & Colpetti

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 Sulo and Colpetti

Details

AGLC: Sulo and Colpetti [2010] FamCA 493
Case: [2010] FamCA 493
Decision Date: 18 June 2010

CaseChat Overview and Summary

In the matter of Sulo and Colpetti, Watts J made orders pursuant to section 79 of the *Family Law Act 1975* (Cth) concerning the division of property between the parties. The dispute involved the distribution of funds held in a controlled monies account and other assets.

The court was required to determine how the parties' property, including a significant sum held in a controlled monies account, should be divided. This involved allocating specific percentages of the controlled monies account to each party and addressing the payment of certain debts and liabilities.

Watts J ordered that the controlled monies account, including accumulated interest, be released with 53 percent to the wife and 47 percent to the husband. The husband was further ordered to pay $20,000 from his share of these funds to R and an equivalent sum to the Child Support Agency, to be credited against his child support liabilities for G. The husband was also to indemnify the wife for any liability arising from a tax invoice dated 3 September 2007 from W Realty and attend to its payment. Each party was declared the sole and beneficial owner of all other property in their possession, including superannuation entitlements. The court also made provision for a Registrar or Deputy Registrar to execute documents if a party failed to do so, and granted liberty to apply on seven days' notice.

Orders

Orders of the court

Pursuant to s 79 Family Law Act 1975 (Cth), an order be made in accordance with paragraphs 2 and 5 below.

The parties forthwith do all acts and things and execute all documents necessary to authorize Simon Diab of Simon Diab & Associates to release to the wife the sum equivalent to 53 percent and release to the husband the sum equivalent to 47 percent of all funds held in the controlled monies account for the parties, including any accumulated interest (“the controlled monies account”).

The husband pay to R the sum of $20,000 from monies that he receives from the controlled monies account.

The husband indemnify the wife in relation to any liability to W Realty arising out of their tax invoice dated 3 September 2007 and the husband attend to the payment of that invoice (if he has not already done so).

Each party be declared the sole and beneficial owner of all other items of property in their respective possession custody or control including but not limited to superannuation entitlements.

In the event that either party shall fail, neglect or refuse to execute any deed, instrument or document to give validity and effect to these orders then upon the other party filing an affidavit setting out such failure, neglect or refusal then a Registrar or a Deputy Registrar of the Sydney Registry of the Court is hereby appointed pursuant to section 106A of the Family Law Act to execute any such deed, instrument or document in the name of the party who defaults and to do all things necessary to give validity to the operation of the deed, instrument or document.

The parties have liberty to apply on 7 days notice in respect of the implementation of these orders.

The husband pay to the Child Support Agency the sum of $20,000 from monies that he receives from the controlled monies account and that that payment is to be treated by the Agency as a credit against liabilities the husband has or will have for the payment of periodic child support for G born … February 1996.

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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