Zadenev & Zadenev - [2013] FamCA 838

FAMILY COURT OF AUSTRALIA

ZADENEV & ZADENEV

[2013] FamCA 838

FAMILY LAW – INTERIM PROPERTY SETTLEMENT
FAMILY LAW – SPOUSAL MAINTENANCE – interim – where the husband seeks that any administrative assessment of child support be deducted from any order for spousal maintenance – where the wife opposes an order being made in those terms – where in those circumstances it is not permissible to make a spousal maintenance order on that basis

FAMILY LAW – interim costs

Family Law Act 1975 (Cth)

Strahan & Strahan (2011) FLC 93-466
Harris & Harris (1993) FLC 92-378
Farnell & Farnell (1996) FLC 92-681
In the Marriage of Poletti (1990) 15 FamLR 794
Redman & Redman (1987) FLC 91-805
Bevan & Bevan (1995) FLC 92-600
Oates & Crest (2008) FLC 93-365

Stein & Stein (2000) FLC 93-004

APPLICANT:

Ms Zadenev

RESPONDENT:

Mr Zadenev

FILE NUMBER:

SYC

2142

2013

DATE DELIVERED:

24 October 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

27 May 2013 and 5 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Batey

SOLICITOR FOR THE APPLICANT:

Selvaggio Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Kearney, SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Kelly

Orders

PENDING FURTHER ORDER:

As soon as practicable after it is completed, the husband both personally and in his capacity as a director of any relevant corporate entity associated with the building services business, do all acts and things and sign all documents necessary and use his best endeavours to cause a copy of the valuation currently being prepared by B Accountants in respect of the business, to be made available to the wife.
The husband pay to the wife by way of spousal maintenance the sum of $1,914 per week.
I note that the wife is currently receiving a further amount of $1,500 per week from the husband or the entities he controls; $750 by way of spousal maintenance and $750 by way of child support.
The husband continue to pay or alternatively cause entities that he controls to continue to pay, those expenses which are identified in Part N of the wife’s financial statement filed 22 April 2013 and in the husband’s Amended Response filed 20 May 2013, namely:
4.1.all periodic mortgage repayments in relation to the mortgage to the National Australia Bank secured over the title of the Suburb C home;
4.2.Council and water rates of the Suburb C home;
4.3.land tax (if any) of the Suburb C home;
4.4.house and contents insurance of the Suburb C home;
4.5.house repairs of the Suburb C home;
4.6.gas;
4.7.electricity;
4.8.heating fuel;
4.9.telephone (land line and mobile) and the internet connection at the home;
4.10.motor vehicle repayments;
4.11.motor vehicle petrol card (to a maximum of $150 per week);
4.12.motor vehicle maintenance;
4.13.medical, dental and optical (not including health insurance premiums) for the wife;
4.14.gardening/lawn mowing;
4.15.cleaning house and pool;
4.16.pay television subscription;
4.17.Roam Express toll charges (to a maximum of $15 per week); and
4.18.private health insurance cover for the wife at…

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 Zadenev & Zadenev

Details

AGLC: Zadenev & Zadenev [2013] FamCA 838
Case: [2013] FamCA 838
Decision Date: 24 October 2013

CaseChat Overview and Summary

In the matter of *Zadenev & Zadenev*, Watts J of the Family Court of Australia considered an application concerning interim property settlement and spousal maintenance. The dispute involved the husband and wife, with the husband seeking that any administrative assessment of child support be deducted from any order for spousal maintenance, an application opposed by the wife.

The court was required to determine the terms of interim spousal maintenance, the extent of the husband's ongoing financial obligations, and whether to order the sale of the parties' home. Specifically, the court had to consider the husband's proposal regarding the deduction of child support from spousal maintenance and the wife's opposition to such an arrangement.

Watts J ordered that the husband pay the wife $1,914 per week by way of spousal maintenance. The court noted that the wife was already receiving $1,500 per week from the husband or his controlled entities, comprising $750 for spousal maintenance and $750 for child support. The husband was also ordered to continue paying, or cause his entities to pay, specific expenses detailed in the parties' financial statements, including mortgage repayments, rates, insurance, utilities, and motor vehicle expenses for the wife. Furthermore, the husband provided an undertaking to cover school fees, educational costs, therapy, and lessons for the child, D, as well as private health insurance for the children. The wife and children were granted exclusive occupancy of the Suburb C home, with the husband responsible for outgoings and required to facilitate reasonable time with the children at the property. The husband's application for the sale of the Suburb C property was dismissed.

Orders

Orders of the court

PENDING FURTHER ORDER:

As soon as practicable after it is completed, the husband both personally and in his capacity as a director of any relevant corporate entity associated with the building services business, do all acts and things and sign all documents necessary and use his best endeavours to cause a copy of the valuation currently being prepared by B Accountants in respect of the business, to be made available to the wife.

The husband pay to the wife by way of spousal maintenance the sum of $1,914 per week.

I note that the wife is currently receiving a further amount of $1,500 per week from the husband or the entities he controls; $750 by way of spousal maintenance and $750 by way of child support.

The husband continue to pay or alternatively cause entities that he controls to continue to pay, those expenses which are identified in Part N of the wife’s financial statement filed 22 April 2013 and in the husband’s Amended Response filed 20 May 2013, namely:

4.1. all periodic mortgage repayments in relation to the mortgage to the National Australia Bank secured over the title of the Suburb C home;

4.2. Council and water rates of the Suburb C home;

4.3. land tax (if any) of the Suburb C home;

4.4. house and contents insurance of the Suburb C home;

4.5. house repairs of the Suburb C home;

4.6. gas;

4.7. electricity;

4.8. heating fuel;

4.9. telephone (land line and mobile) and the internet connection at the home;

4.10. motor vehicle repayments;

4.11. motor vehicle petrol card (to a maximum of $150 per week);

4.12. motor vehicle maintenance;

4.13. medical, dental and optical (not including health insurance premiums) for the wife;

4.14. gardening/lawn mowing;

4.15. cleaning house and pool;

4.16. pay television subscription;

4.17. Roam Express toll charges (to a maximum of $15 per week); and

4.18. private health insurance cover for the wife at the existing rate.

The husband gave the following undertaking; that the husband or entities he controls shall pay:

5.1. school fees for D;

5.2. textbooks and other schooling costs for D over and above the tuition fees;

5.3. occupational therapy for D,

5.4. singing lessons for D (to a maximum of $33 per week),

5.5. piano lessons for D (to a maximum of $33 per week),

5.6. football registration fees and associates expenses for D (to a maximum of $60 per week).

5.7. private health insurance cover for the children at the existing level.

The wife and children have exclusive occupancy of the Suburb C property with the husband paying outgoings on that property (as required by order 4) and for the husband to have the right to come to the property for the purposes of spending reasonable time with the two children.

The husband’s application for sale of the Suburb C property is dismissed.

This matter be listed for further mention before me on 25 November 2013 at 9.30am.

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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