FAMILY COURT OF AUSTRALIA
| OSFERATU & OSFERATU | [2012] FamCA 408 |
| FAMILY LAW – PROPERTY – interim – whether it was appropriate and in the interests of justice to make an interim property order – whether the orders sought were conservatively within the range of outcomes the wife might receive. FAMILY LAW – SPOUSAL MAINTENANCE – interim. FAMILY LAW – CHILD SUPPORT – interim. |
| Family Law Act 1975 (Cth) Child Support (Assessment) Act 1989 (Cth) |
| Strahan and Strahan (2011) FLC 93-466 Gyselman & Gyselman (1992) FLC 92-279, 79,065 |
| APPLICANT: | Ms Osferatu |
| RESPONDENT: | Mr Osferatu |
| FILE NUMBER: | SYC | 2318 | of | 2011 |
| DATE DELIVERED: | 31 May 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 20 December 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Sansom |
| SOLICITOR FOR THE APPLICANT: | Watts McCray |
| COUNSEL FOR THE RESPONDENT: | Mr Kearney |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan Kelly |
Orders
The husband pay to the wife or as she directs, the amount of $4,300,000 by way of clear unencumbered funds by the following times:
1.1.$1,434,000 within 60 days of the date of these orders;
1.2.$1,434,000 within 120 days of the date of these orders;
1.3.$1,432,000 within 180 days of the date of these orders.
The husband shall pay by way of spousal maintenance to the wife, or as she may direct in writing, the following amounts:
2.1.Until the first payment referred to in order 1.1, the sum of $2,500 per week;
2.2.Until the second payment referred to in order 1.2, the sum of $1,918 per week;
2.3.Until the third payment referred to in order 1.3, the sum of $1,336 per week;
2.4.And thereafter $754 per week
with the first payment to be made within 7 days, and thereafter monthly in advance.
The husband shall pay by way of interim spousal maintenance the following expenses as and when they fall due:
3.1.Motor vehicle registration, leasing, insurances and servicing costs for the Range Rover motor vehicle driven by the wife.
3.2.Outgoings for the property at B Street, Sydney Suburb 3 (“former matrimonial home”), including electricity; council and water rates; home, contents and building insurances; alarm monitoring and gardening.
By way of departure from any administrative assessment of child support for the children, the husband pay to the wife, or as nominated by her in writing:
4.1.The sum of $6,500 per child, per month, for children S and E, with the first payment to be made within 7 days and thereafter monthly in advance.
4.2.The sum of $650 per month for the child, S, to be applied towards tutoring of S, and in the event that S no longer receives tutoring, such payment shall cease.
The husband pay…
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- AGLC
- OSFERATU & OSFERATU [2012] FamCA 408
- Case
- [2012] FamCA 408
- Decision Date
CaseChat Overview and Summary
The court's reasoning led to a comprehensive set of orders addressing the financial aspects of the marital breakdown. A significant property settlement was ordered, requiring the husband to pay a substantial sum to the wife in instalments over a period of 180 days. Concurrently, the court stipulated a tiered approach to spousal maintenance, with weekly payments decreasing over time as the property settlement instalments were made, and a residual weekly amount thereafter. The husband was also ordered to cover specific ongoing expenses related to the wife's motor vehicle and the former matrimonial home.
Further orders detailed the husband's child support obligations, which were to be paid monthly in advance and included substantial monthly sums per child, as well as specific provisions for tutoring and all tuition and medical expenses for the children. These child support payments were to be credited against any administrative assessment. The wife was restrained from dealing with her interest in certain properties, and leave was granted to relist the matter to determine the validity of a financial agreement. Finally, specific arrangements were made for the husband and his company to attend the former matrimonial home for remedial work, subject to strict notice and supervision conditions.
Orders
Orders of the court
1.
The husband pay to the wife or as she directs, the amount of $4,300,000 by way of clear unencumbered funds by the following times:
1.1. $1,434,000 within 60 days of the date of these orders;
1.2. $1,434,000 within 120 days of the date of these orders;
1.3. $1,432,000 within 180 days of the date of these orders.
2.
The husband shall pay by way of spousal maintenance to the wife, or as she may direct in writing, the following amounts:
2.1. Until the first payment referred to in order 1.1, the sum of $2,500 per week;
2.2. Until the second payment referred to in order 1.2, the sum of $1,918 per week;
2.3. Until the third payment referred to in order 1.3, the sum of $1,336 per week;
2.4. And thereafter $754 per week
with the first payment to be made within 7 days, and thereafter monthly in advance.
3.
The husband shall pay by way of interim spousal maintenance the following expenses as and when they fall due:
3.1. Motor vehicle registration, leasing, insurances and servicing costs for the Range Rover motor vehicle driven by the wife.
3.2. Outgoings for the property at B Street, Sydney Suburb 3 (“former matrimonial home”), including electricity; council and water rates; home, contents and building insurances; alarm monitoring and gardening.
4.
By way of departure from any administrative assessment of child support for the children, the husband pay to the wife, or as nominated by her in writing:
4.1. The sum of $6,500 per child, per month, for children S and E, with the first payment to be made within 7 days and thereafter monthly in advance.
4.2. The sum of $650 per month for the child, S, to be applied towards tutoring of S, and in the event that S no longer receives tutoring, such payment shall cease.
5.
The husband pay by way of non periodic child support:
5.1. All tuition fees and expenses for the child B listed on all tax invoices issued by School 1 to the parties;
5.2. All tuition fees and expenses for S and E as listed on all tax invoices issued by School 2 to the parties;
5.3. All medical expenses for the children, B, S and E, including health insurance premiums, gap medical expenses, orthodontic and dental fees, and, for the purposes of this order, any accounts for any dental or orthodontic expenses are to be directed to the husband and he shall attend to the claim of all health insurance rebates and the payment of the gap then remaining.
6.
The child support payable by the husband pursuant to the orders 4 and 5:
6.1. Is to be credited against the husband’s liability under any administrative assessment of child support payable by the husband to the wife pending further order; and
6.2. Is to count for 100 per cent of the annual rate of child support payable by the husband under any administrative assessment of child support payable by the husband to the wife pending further order.
7.
The wife is restrained from selling, encumbering or dealing with her interest in the properties known as property R and property Y.
8.
Leave is granted to relist this matter for directions for a preliminary hearing as to whether or not the financial agreement, being annexure A to the husband’s affidavit sworn 15 April 2011, is binding or is to be set aside.
9.
In the event the husband still desires to do so, on or before 28 June 2012 the wife shall permit attendance by the husband and employees of G Company at the former matrimonial home for the purpose of directing and supervising remedial work to be undertaken by G Company, provided that:
9.1. the husband provides the wife with not less than 72 hours prior notice by email of such attendance;
9.2. the husband attends at all times with each of:
9.2.1. the employees of G Company; and
9.2.2. any such person as the wife may nominate who shall be permitted to videotape the husband whilst at the property.
and the wife shall ensure she is not in attendance at the property on such occasions.
10.
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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