Benson and Benson (No 2)

[2017] FamCA 862

FAMILY COURT OF AUSTRALIA

BENSON & BENSON (NO. 2) [2017] FamCA 862

FAMILY LAW – PROPERTY – Money held in trust

Family Law Act 1975 (Cth)

APPLICANT: Ms Benson

RESPONDENT: Mr Benson

FILE NUMBER: CAC 599 of 2013

DATE DELIVERED: 30 October 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 30 October 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Farrar Gesini Dunn

Orders

1. The husband is to cause to be deposited into the trust account of Farrar Gesini Dunn the sum of $11,037.81, being funds held by him in his Westpac accounts by close of business 31 October 2017.

2. The husband is restrained by injunction from drawing upon that Westpac account other than in compliance with the above order.

3. The husband is restrained by injunction from making drawings upon any other bank account held in his name.

4. The husband is restrained by injunction from drawing upon the amount placed in the Farrar Gesini Dunn trust account in accordance with order 1 and from drawing upon any of his superannuation accounts other than to pay the following amounts:

   (a)Bond on the securing of a rental property in the approximate sum of $1,520.

   (b)Fortnightly amounts as follows:

   (i)Medibank Private   $104.44

   (ii)Rent   $380.00

   (iii)Gym   $39.00

   (iv)Telstra/Internet   $101.54

   (v)Medical and subscriptions   $115.38

   (vi)Fuel, insurance, registration and repairs          $400.00

   (vii)Groceries/meals   $460.00

   (viii)Netflix   $8.30

   (ix)Electricity   $76.62

   (x)Contents insurance   $30.00

   (xi)Coffee/dining   $140.00

   (c)One monthly expense to Bank K in the sum of $430 per month.

5. In order to comply with the orders in relation to living expenses Mr Benson is entitled to draw down on the Farrar Gesini Dunn trust account in his name at the commencement of each fortnight the sum representing the total of those expenses outlined above for the fortnight and is entitled to expend amounts in accordance with the above identified expenses and not otherwise, allowing him to roll over those amounts which did not occur in that fortnight to a future fortnight in order to consolidate the amounts.

6. In the event that Mr Benson seeks to make any further drawing upon superannuation accounts for the payments of the amounts allowable under these orders then he is to provide the wife with 14 days’ notice of his intention to apply for such an amount to be released to him.

7. In the event that the husband receives medical rebate amounts for medical expenses incurred by him he is directed by injunction to deposit those amounts into the Farrar Gesini Dunn trust account.

IT IS FURTHER ORDERED, IN CHAMBERS

1. The husband is to notify the wife within 3 days of his securing of employment.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Benson & Benson (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 599 of 2013

Ms Benson

Applicant

And

Mr Benson

Respondent

REASONS FOR JUDGMENT

1. Ms Benson seeks by way of injunctive relief the restraint of the proceeds received by Mr Benson of a redundancy payout.  The restraint that she sought was in the sum of $120,000.  On being given the opportunity to provide material in response to Ms Benson’s application Mr Benson has filed an affidavit that sets out that he received an amount of just over $120,000 by way of redundancy along with a further $20,000 taken from superannuation entitlements that he held.  He has set out in his affidavit how those amounts have been expended to a sum of $111,000 and has today tendered a further document showing a further $3,000 was paid as referred to in paragraph 11 of that affidavit where he identified a $3,000 amount being payable to a Dr T.  That amount has now been paid adding to a total of $114,000 (approximately).  This leaves, on those figures $26,000 remaining.  However, the only remaining amount at present that has been identified is a sum of approximately $11,000 that is held in Mr Benson’s Westpac account.

2. The difficulty with the application made by Ms Benson is twofold.  The first is that the $120,000 that she sought to restrain no longer appears to be in existence.  The second is that based upon the affidavit material filed by Mr Benson he has no means to support himself at present.  It appears that he has some prospects, or at least is asserted to have prospects of retaining further employment.  Pending obtaining that employment he has identified the need he has to support himself at paragraphs 9 and 10 of that affidavit.  Those needs can be identified as a requirement to pay bond on obtaining a rental property in the sum of about $1,520.  Secondly the items set out in paragraph 10 which are living expenses. 

3. Ms Benson concedes that pending Mr Benson obtaining employment it should be permissible for him to draw upon the balance of the sum that he holds in order to meet those living expenses.  He seeks a further amount in payment of an outstanding debt to Bank K which is payable in the sum of $430 per month which it seems would also be a necessary expense to take as a living expense pending obtaining employment.  Mr Benson agrees to orders that will restrain his drawing down upon that sum but for the items identified in paragraphs 9 and 10 and the Bank K amount each month.  He further identifies that he has obtained further medical treatment and paid further medical expenses for which he may receive a rebate and would accept an order that would require him to deposit the rebate into an account in which the balance will be held.  He further accepts an obligation being placed upon him to notify the wife within three days of him securing further employment.  This will enable her to take any further steps to secure that amount and to ensure that it is not depleted further, although the terms of the orders that I am to make should achieve that on their own.

4. Given the uncertainties that have arisen about the expenditure of the payments received by Mr Benson and the concession made during the giving of reasons that the explanation as to the expenditure was only in relation to the redundancy and not in relation to the superannuation, and given a further concession by Mr Benson that he will not draw against his M Super funds save in respect of the items identified in paragraphs 9 and 10 of his affidavit it appears that the potential for the access to the funds also requires a restraint, as being a matter proper for the imposition of injunctive relief for the wife, in order to secure for her the potential compliance with orders made by Judge Neville that she seeks to litigate in January 2018, along with her application for maintenance that she seeks to litigate at the same time.  Given the expenditure of funds by Mr Benson the restraint upon him of access to other accounts and to his superannuation is appropriate in so far as it still enables him to pay living expenses and safeguards the wife’s position to the greatest possible extent. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 30 October 2017.

Associate: 

Date:  1 November 2017