Osferatu and Osferatu

[2013] FamCA 609

FAMILY COURT OF AUSTRALIA

OSFERATU & OSFERATU [2013] FamCA 609

FAMILY LAW – PROCEDURAL – Objection – affidavit material

APPLICANT: Mr Osferatu

RESPONDENT: Ms Osferatu

INDEPENDENT CHILDREN’S LAWYER: Mr Glen Thompson

FILE NUMBER: SYC 2318 of 2011

DATE DELIVERED: 25 July 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: Thursday,  25 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson SC with Mr Kearney SC

SOLICITOR FOR THE APPLICANT: Barkus Doolan

COUNSEL FOR THE RESPONDENT: Mr Kirk QC with Mr Campton

SOLICITOR FOR THE RESPONDENT: Watts McCray

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Mr Levy

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr Thompson

Orders

1. The wife’s objection to paragraph 304 of the husband’s affidavit is upheld and the paragraph struck out.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Osferatu & Osferatu (objection to paragraph 304) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2318 of 2011

Mr Osferatu

Applicant

And

Mr Osferatu

Respondent

REASONS FOR JUDGMENT

1. Objection has been taken to paragraph 304 of the husband’s affidavit on a number of grounds.  Paragraph 304 is pressed.  It is short, and is as follows:

   I have utilised this formula in the developments that I have undertaken during the course of the marriage and to the renovation and construction work that I have undertaken on the various properties that [Ms Osferatu] and I lived in during the course of the marriage.

2. The formula which is referred to in that paragraph has been defined in earlier paragraphs of the husband’s affidavit commencing at paragraph 286, which said as follows:

   During the period between 1975 and 1999, I developed a formula or methodology that I applied to all of my … developments and which I have continued to apply since cohabitation with [Ms Osferatu] and subsequent marriage. 

3. The affidavit then sets out in great detail what the methodology and/or formula was.  I permitted the husband, against objection, to give that evidence on the basis that I understood the potential relevance of that evidence was to establish his qualification as a developer of real estate in various forms.  The affidavit following on from paragraph 304, the one under consideration, then provides specific detail of the contributions which the husband claims to have made in relation to each piece of real estate acquired, each interest acquired during the course of cohabitation and all his contributions of a financial and non-financial nature in relation to those entities.  I proposed to – and did allow – the husband to give evidence of his methodology. However, in relation to the actual contributions which he claims he made, in relation to specific properties, corporations, entities or projects, during the course of the cohabitation and since, he must give specific evidence. 

4. Given that he has provided very precise details of each contribution,  I am not prepared to allow him to continue on with a general statement of the nature in paragraph 304 because I am of the view that it has the potential to lead to an injustice in the final determination of the case.  It seems to me no prejudice flows to the husband by a ruling that prevents him relying on a general claim that he applied his usual methodology, or similar words, because he has, as I have said, in very specific terms, set out what his actual contributions in respect of each development, acquisition, business and financial activity was during the course of the cohabitation.  As a consequence, I will not permit him to rely on paragraph 304 and I uphold the objection.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 25 July 2013.

Associate: 

Date:  25 July 2013