Kozlov & Kozlov
[2021] FamCA 346
•28 May 2021
FAMILY COURT OF AUSTRALIA
Kozlov & Kozlov [2021] FamCA 346
File number(s): PAC 5679 of 2020 Judgment of: FOSTER J Date of judgment: 28 May 2021 Catchwords: FAMILY LAW – PROPERTY – INJUNCTIONS – where application for injunctions restraining the disposition of funds under the wife’s control pending further order – where a risk exists that funds may be dissipated or disposed of by the wife – where consideration of applicable principles – where appropriate for injunctions to be granted securing funds under the wife’s control pending further order.
FAMILY LAW – INTERIM SPOUSE – MAINTENANCE – where application by husband for interim spouse maintenance – where consideration of applicable principles – where order made for payment by wife from capital.
Legislation: Family Law Act 1975 (Cth) ss 72, 74, 114 Cases cited: Bevan & Bevan (1995) FLC 92-600
Fewster & Drake [2016] FamCAFC 214
Hall v Hall [2016] HCA 23
Redman & Redman [1987] FamCA 2; (1987) FLC 91-805
Tsiang & Wu and Ors (2019) FamCAFC 128
Number of paragraphs: 76 Date of hearing: 29 April 2021 Place: Parramatta Counsel for the Applicant: Mr Campton SC Solicitor for the Applicant: The Norton Law Group Counsel for the Respondent: Mr Schonell SC Solicitor for the Respondent: ATW Family Law ORDERS
PAC 5679 of 2020 BETWEEN: MR KOZLOV
ApplicantAND: MS KOZLOV
Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
28 MAY 2021
THE COURT ORDERS, PENDING FURTHER ORDER:
1.That the wife pay to a bank account nominated by the husband periodic spouse maintenance for the husband in the sum of $350 per week with the first payment to be made within seven days from this date and that for the purposes of such payment the wife be at liberty to make such payment from capital funds available to her at bank subject to the injunctive order below.
2.That the wife be restrained from reducing the balance standing to the credit of her National Australia Bank account … below the sum of $800,000 without the consent in writing of the husband or court order.
3.Liberty to apply as to implementation or enforcement of these orders.
4.That, otherwise, all interim applications before the Court are dismissed
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kozlov & Kozlov has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
In the context of the wife’s primary Initiating Application filed 23 October 2020 seeking final parenting orders in relation to the parties’ four children of their relationship, the husband filed a Response to that Initiating Application on 4 November 2020, seeking both parenting and final property orders.
The husband’s Response relevantly sought interim orders, in summary, as follows:
(a)that the husband have sole use and occupation of the former matrimonial home at B Street, Suburb C;
(b)that by way of interim spouse maintenance the wife pay to the husband the sum of $1,900 per week;
(c)that the wife pay to the husband the sum of $500,000 with the nature of that payment be categorised at final hearing.
Subsequently, interim orders were made by consent on 5 November 2020 by a senior registrar. Those orders, in summary, relevantly provided:
(a)that the three children of the parties under 18 years of age live with the mother and that the children spend defined time with the father;
(b)that within 48 hours the mother pay to the father by way of partial property order the sum of $350,000.
It was, otherwise, noted that the parties were to attend mediation later in November 2020.
On 17 November 2020 the husband filed a fresh Application in a Case seeking, relevantly, the following orders:
(a)that the orders made 5 November 2020 be reviewed or in the alternative be discharged;
(b)that pending further order the husband have sole use and occupation of the property at Suburb C;
(c)that the wife be restrained from making any withdrawals or payment from her D Bank account without agreement of the parties or further court order.
The Application in a Case was listed before a registrar on 20 November 2020 with various procedural orders being made in relation to parenting issues. It was noted by the registrar on that day that:
A:the mother has a motor neurone disease that is likely to result in incapacity and likely debt in the short-term.
B:the mother’s father has been charged with attempted murder of the father The husband’s interim application was again before a registrar on 14 January 2021 and 11 February 2021 of which date proceedings were not ready to be transferred to the interim judicial hearing list.
Subsequently, on 16 March 2021 proceedings were listed before the Court and on that day certain orders were made as to ongoing family therapy in relation to the parenting issues. Otherwise, the husband’s Application in a Case filed 17 November 2020 as amended by Amended Application in a Case filed 9 March 2021 was adjourned for hearing to 2.15 pm on 29 April 2021.
Otherwise, the wife was ordered to file a Response to the Amended Application in a Case and any affidavit material to be relied upon by her by no later than the close of business on 16 April 2021.
The interim proceedings were heard on 29 April 2021. On that day it was ordered, pending delivery of reasons for judgment, that the wife be restrained from reducing the balance of money standing to the credit of her financial accounts with financial institutions to any sum less than $1 million pending further order. Otherwise, judgment was reserved.
Documents
On interim hearing the husband relied upon the following documents:
(a)his Amended Application in a Case filed 9 March 2021 seeking, relevantly, orders:
(i)that the wife be restrained from making any withdrawals or payments from the D Bank accounts in an amount which would reduce the balance of those accounts below $1 million;
(ii)that the wife pay the husband spousal maintenance in the sum of $1,711;
(b)his financial statement filed 9 March 2021;
(c)his affidavit filed 9 March 2021;
(d)the affidavit of Ms F Psychologist filed 23 April 2021.
The wife relied upon the following documents:
(a)her Response filed 28 April 2021 to the husband’s Application in a Case;
(b)her financial statement filed 28 April 2021;
(c)her affidavit filed 28 April 2020;
(d)the affidavit of Professor G filed 10 February 2021.
In her Response, the wife sought an order that the husband’s Application in a Case be dismissed and that the husband pay her costs of and incidental to the application.
Context
The husband is presently aged 51 and the wife aged nearly 47.
The parties commenced cohabitation in about 1998 and later married in 2002.
The parties separated under the one roof in mid-August 2020 with the wife later vacating the family home on 10 October 2020. Subsequently, following the husband’s consideration of the wife’s ill-health, orders were entered into by consent allowing the wife to return to the home and requiring the husband to vacate the home by 12 November 2020.
There are four children of the parties’ relationship presently aged 18, 16, 14 and 12.
Current interim orders provide that the children reside with the wife. Notwithstanding, the child aged 16 in February 2021 chose to live primarily with the husband and spend weekend time with the wife.
The Husband’s Evidence
During cohabitation the husband worked primarily on a self-employed basis. The wife for her part worked in various managerial capacities.
In May 2018 the wife was offered a managerial position that would require the family to relocate to Country H by July 2018. To facilitate the move the husband ceased his business.
The parties relocated to Country H with the wife working long hours, including regular overseas travel.
In June 2019 the wife was diagnosed with motor neurone disease.
Following the diagnosis the family returned to live in Australia at their matrimonial home at Suburb C. The wife continued to work until March 2020, notwithstanding, her deteriorating condition.
The wife made an application for a disability pension, NDIS support and for a payment arising from her Total and Permanent Disablement insurance.
The wife commenced to receive the monthly income protection insurance payments of about $10,700 per month. It is the husband’s understanding that these payments will continue until the wife’s death.
The wife received a significant TPD payout and her superannuation totalling about $1.652 million. Otherwise, the parties had savings of about $200,000. On 16 September 2020 the wife transferred the sum of $1.8 million of those funds to an account controlled by her mother with these funds being returned to the wife’s account on 18 September 2020. The husband expresses concern that the wife might, otherwise, dissipate these funds.
On 6 November 2020 the wife paid to the husband as ordered the sum of $350,000.
In late November 2020, the day on which the husband was required to vacate the matrimonial home, he was at the home packing personal belongings into his car when, it is alleged, the wife’s father attempted to murder the husband. The wife’s father has been charged with attempted murder. The husband was treated at hospital and returned to the home the next day.
Of the capital funds paid to him, the husband, as at March 2020, had a balance remaining of about $214,000, having paid $50,000 to his solicitors and having paid 12 months’ rent in advance and a rental bond totalling $57,200. He has, otherwise, expended about $20,000 on furnishing his rental property and expended other monies in relation to the children.
The husband has been consulting a psychologist since February 2020 for “grief counselling and depression”. The psychologist notes in her report dated 1 November 2020, that the husband reported symptoms consistent with major depressive disorder and grief/bereavement. At that time, as to prognosis, the psychologist reported that the husband had made improvements during his treatment but that the recent deterioration in the family situation had impacted him negatively.
In an updated report of 16 March 2021 the psychologist notes that the husband reports that he had moved out of the home and has settled into a new house in Suburb J. The husband’s treatment had moved to deal with symptoms associated with the attack including hypervigilance, acute fears for his safety, nightmares and bad dreams and feeling edgy. The husband is reported to suffer intrusive thoughts when seeing people in surgical masks (as worn by his attacker).
In considering the husband’s updated diagnosis and prognosis it is reported that the husband suffers from major depressive disorder and post-traumatic stress disorder. As to the husband’s ability to return to the workforce, the psychologist is of the opinion that he is currently not ready to be back in the workforce but in the future when symptoms resolve he will be able to do so.
The husband asserts that the former matrimonial home at B Street, Suburb C, now occupied by the wife, has a value of about $2.5 million and is unencumbered.
In noting that the husband has prepaid rent to November 2021, it appears from the husband’s financial statement that his weekly expenses comprise the following:
Car Insurance $ 4
Car Registration $ 13
Food $ 150
Household Supplies $ 50
Gas $ 15
Electricity $ 10
Petrol/maintenance $ 70
Clothing $ 20
Medical $ 100
Entertainment $ 10
Chemist $ 10
Dry cleaning $ 10
Books $ 5
Hairdressing/Toiletries $ 10
$ 477
The Wife’s Evidence
The wife in her financial statement reveals her weekly income to comprise a disability pension that is to be cancelled and that will give rise to an overpayment repayment of about $13,300 to be made by her to Centrelink.
Otherwise, the wife’s weekly income comprises her income protection insurance payments of about $4,000 per week with an income tax liability of about $1,200 per week. The net income after tax is about $2,800 per week.
Otherwise, the wife’s reasonable weekly expenses include:
Rates and taxes $ 42
Family private health cover $ 102
Food $ 112
Household Supplies $ 10
Gas/Electricity $ 10
Telephone $ 10
Petrol $ 10
Fares including Uber $ 105
Clothing/Shoes $ 80
Medical etc $ 432
Entertainment $ 54
Holidays $ 50
Chemist/Pharmaceutical $ 230
Repairs $ 2
Books/Magazines $ 2
Gifts $ 28
Hairdresser/Toiletries $ 25
Other shopping $ 203
$ 1,507
The wife has significant ongoing medical expenses that, apart from the funds expended by her above, are met through NDIS.
Otherwise, the wife has significant ongoing expenses in relation to the children that are in her care.
The wife in her financial statement discloses the following sums at bank:
National Australia Bank $ 1,101,000
D Bank $ 30,000
Her solicitors trust account $ 46,200
The wife makes complaint as to the husband’s failure to seek appropriate employment while the family was in Country H or, indeed, after the family’s return to Australia in July 2019.
As at 12 June 2020 the wife had a superannuation balance of $706,703. That sum comprised proceeds from her TPD insurance claim of $359,000, with the balance representing their accumulation superannuation account as at termination.
Otherwise, the wife received a total of $945,610 from proceeds of her life policies.
The wife says that these funds deposited to her account are intended to be used by her for her ongoing medical costs and living expenses, with any residual being for her children.
The two youngest children, aged 12 and 14, have spent no time with the father since February 2021. The child aged 16 has moved to reside with the father but continues to have a close relationship with the wife and her siblings.
The wife expects that she will need to rehouse herself and make modifications to a home which are suitable for her medical needs as her condition progresses.
The wife complains as to the husband’s failure to provide full and frank disclosure, particularly in relation to funds deposited to his Commsec CBA account. Otherwise, the wife asserts that the husband has received a Victims Services payment of $5,000 on 2 February 2021.
The wife asserts that in the period from October 2019 to November 2020 the husband transferred from the wife’s bank accounts to his D Bank account sums totalling $140,254. Further, the husband transferred from the wife’s account sums totalling $82,232 to his CBA account in the period from April 2020 to June 2020. Additionally, sums totalling $64,300 were transferred from the wife’s NAB account into trenches on 24 February 2020 and 21 May 2020. The wife is unaware as to where those funds were paid as the transactions were not initiated by her. Clearly, issues as to these monies, that the wife asserts were received by the husband, will be a matter for evidence at final hearing.
Spouse Maintenance
Section 72 of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant provisions in relation to the right to spouse maintenance. The Court can make such order as it considers proper (s 74 of the Act).
Section 72 provides that a party to a marriage is liable to maintain the other party to the extent that the first mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or a physical or mental incapacity for appropriate gainful employment; or
(c)for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2) of the Act.
In Redman and Redman [1987] FamCA 2; (1987) FLC 91-805 at 76,081 the Full Court (Evatt CJ, Lindenmayer and Nygh JJ) said:
As Nygh J. said in Ashton, the most common purpose of an interim order is to make provision for the spouse and children pending the determination of the property settlement. If a so-called permanent order is made on that occasion, that is not a variation under sec. 83 and does not have to be justified as such, but it is a fresh order made upon the termination of the interim order. Another consequence is that on an application for interim maintenance the court conducts “not as final or exhaustive a hearing as would be the case if one were hearing the matter finally”: Williamson and Williamson [1978] FamCA 57; (1978) FLC 90-505; (1978) 4 Fam. L.R. 355 at FLC p. 77,650; Fam. L.R. p. 359 per Fogarty J. The evidence need not be so extensive and the findings not so precise. Having regard to those factors, and the general injunction of sec. 97(3), the court should in such matters have a greater degree of flexibility than it possesses in applications for maintenance which are intended to last for an indefinite period and can only be varied under sec. 83.
See also Hall v Hall [2016] HCA 23.
There is no fettering principle that the pre-separation standard of living must automatically be awarded and reasonableness in the circumstances is the guiding principle (see Bevan & Bevan (1995) FLC 92-600).
It is well settled that a party is not required to exhaust capital before a spouse maintenance order can be sought. As the Full Court said in Fewster & Drake [2016] FamCAFC 214:
103.… it is well established that a person’s capital resources need not be exhausted before they can seek an order for spousal maintenance.
104. In Bevan and Bevan (1995) FLC 92-600 (“Bevan”) the Court said at 81,980:
… we do not think that the law requires that a wife should deplete an already comparatively meagre capital sum, to enable a much higher earning husband to avoid his obligation to maintain a former spouse who is in financial circumstances such as those in which she finds herself. She may well wish to apply all or part of that sum to the purchase of new premises and we do not think that she should be prevented from doing so should she desire it.
105.In Mitchell and Mitchell (1995) FLC 92-601 (“Mitchell”) the Court said at 81,995 - 81,996:
… her age and her limited earning capacity would make it legitimate for her to set aside a reasonable capital sum by way of a nest egg against future contingencies and uncertainties such as illness or holidays or other significant changes in her life which may call for expenditure which would go beyond the parameters of a small income.
It is also necessary in determining this issue to have regard to the standard of living of the parties and the financial circumstances of the other person: s. 75(2)(b) and (g). The days are long gone when it is necessary for an applicant for maintenance to use up all of her assets and capital in order to satisfy the requirement that she is unable to support herself “adequately'”. Where the line is to be drawn will depend upon the circumstances of individual cases.
106.However, these two authorities do not establish that the capital of a person seeking spousal maintenance is always to be entirely disregarded. Rather, the point is that the possible need to retain that capital and not use it for day to day support is a relevant consideration to take into account.
It is clear that at present the husband is unable to support himself adequately by reason of mental incapacity for appropriate employment. However, his prognosis is good and his treating practitioner contemplates a circumstance in the future when he will be able to do so.
He has capital at bank and the wife asserts that he has had recourse to funds totalling about $266,000 from her accounts from late 2019 to 2020. Otherwise, the wife asserts that the husband has not made full and frank disclosure. Such issues can only be resolved on the basis of contested evidence at final hearing.
Leaving aside the prepaid rent that secures the husband’s accommodation until November 2021, the husband’s reasonable expenses are assessed at $477 per week.
As to the wife’s capacity, her reasonable expenses are assessed at approximately $1,500 per week. She has after-tax income of about $2,800 per week. In addition to her own expenses, she meets the reasonable expenses of the children within her household that she asserts total a startling figure of $3,173 per week. Examination of that sum reveals what appears to be exaggerated expenses and expenses that are not to be taken into account on an interim basis. Yet reducing her asserted children’s expenses to $1,300 per week would exhaust the balance of her available after-tax income.
The husband is presently aged 51 and the wife almost 47. Their health circumstances are considered above.
The income property and financial resources are considered above. Apart from capital sums at bank, the husband’s modest superannuation and some items of personalty the main asset of the marriage is the matrimonial home, unencumbered having a value assessed by both parties in excess of $2 million.
The wife has the care and control of two of the children of the marriage who spend no time with the husband. The husband has one child within his household, that child spending, it appears, substantial and significant time with the wife.
The commitments of the husband and wife necessary for their support is considered above.
Both parties have a responsibility to support children within the household.
The payment of maintenance to the husband, if ordered, will not assist him in increasing his earning capacity by reason of his present earning capacity being adversely impacted by his mental health circumstances.
It is readily apparent that throughout cohabitation both parties have made significant contributions to the accretion of assets, with the wife’s regrettable health circumstances leading to a significant total and permanent disablement payment, early payment of her superannuation and payout of life policies that totalled a significant sum.
It is appropriate to consider that a portion of the sum presently held by the wife may well be needed to meet medical and other expenses in the foreseeable future. In all the circumstances, it is proper that there be an order for spouse maintenance in favour of the husband in the sum of $350 per week, with the wife at liberty to make that payment from the capital sum available to her in her bank accounts, subject to the injunctive orders to be made as discussed below. Otherwise, the husband can meet the balance of his reasonable living expenses from capital pending further order. The husband is of course able, should his circumstances warrant, to make an application for variation of the interim order for spouse maintenance.
An order will be made accordingly.
Injunctive Relief
The husband, otherwise, seeks an order by way of injunction restraining the wife from reducing the balances of various bank accounts below a total of $800,000 pending further order.
Section 114 of the Act provides that the Court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate. In this matter, of course, the proceedings relate to the property of the parties being funds at bank.
Section 114 relevantly provides:
(1)In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
(a) an injunction for the personal protection of a party to the marriage;
(b)an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;
(c)an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;
(d) an injunction for the protection of the marital relationship;
(e) an injunction in relation to the property of a party to the marriage; or
(f)an injunction relating to the use or occupancy of the matrimonial home.
The grant of an injunction is discretionary and the basis upon which an order or injunction may be made is well settled. The husband in this case has readily satisfied the Court that there is a serious issue to be tried, that being the question of overall property entitlement as between herself and her husband and, in particular, the parties’ entitlement to significant funds realised by reason of the wife’s health circumstances.
The position in relation to interlocutory injunctions is well settled, and the Full Court in Tsiang & Wu and Ors (2019) FamCAFC 128 reviewed the approach to interlocutory injunctions as follows:
20.The grant of an injunction is discretionary and the basis on which such an order is made is well established: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380. A purpose, as in this case, is to preserve the status quo pending resolution of the controversy: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [9]–[12], [15] (per Gleeson CJ) and [245] (per Callinan J). An applicant must demonstrate first that there is a serious issue to be tried: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153-154; Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 328–329; Blueseas Investments Pty Ltd v Mitchell and McGillivray (1999) FLC 92-856 at [56]. While that statement has been the subject of various iterations, in essence it requires the demonstration of an arguable case or as was said in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65], the applicant must “show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo”.
21.Next the applicant must demonstrate that the balance of convenience favours making the order sought: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19]. As part of this, the applicant must show that there is a “danger” or risk of dissipation of or dealings with assets which will frustrate any judgment in favour of the applicant.
22.In Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319, Gleeson CJ said after discussing the discretionary nature of the remedy at 321–325:
… as a general rule a plaintiff will need to establish, first, a prima facie cause of action against the defendant, and secondly, a danger that, by reason of the defendant’s absconding, or of assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with in some fashion, the plaintiff, if he succeeds, will not be able to have his judgment satisfied.
...
It is not difficult to imagine situations in which justice and equity would require the granting of an injunction to prevent dissipation of assets pending the hearing of an action even though the risk of such dissipation may be assessed as being somewhat less probable than not.
23. As McDougall J in Skyworks v 32 Drummoyne Road [2017] NSWSC 343 said:
24.The Court is required to undertake a qualitative evaluation of all the evidence that is available, to see if there is a sufficiently serious risk of frustration to justify the making of a freezing order. Further, the two considerations [namely, (1) whether there is a good arguable case and (2) whether there is a real risk of judgment frustration] should be analysed together (as each may impact on the other), and with an appreciation of both the underlying purpose of the rule and the relative risks of granting or withholding relief – the customary discretionary calculus.
24.In this case the identified risk was that the wife might dispose of assets in Australia and in her name in order to defeat the husband’s claim and, equally it was asserted that there was a risk that the second and third respondents too might deal with the partnership assets in a way so as to defeat the husband’s possible judgment or claim to that entity.
25.It is unnecessary to demonstrate a positive intention but merely the possibility of the event occurring: Mullen and De Bry (2006) FLC 93-293 at [49]. The determination about the balance of convenience may thus be an inference drawn from the facts and circumstances established by the applicant’s evidence: Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 321-322.
26.Nor is it the role of the judge determining the question of the injunction to, in effect conduct a trial of the disputed evidence to resolve those disputes (see Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729).
27.As to the determination of the existence of the risk and its magnitude, in Palmer v Parbery [2019] QCA 27 McMurdo JA (with whom Fraser and Gotterson JJA agreed) said:
119.The determination of whether there exists a sufficiently serious risk of the dissipation of assets involves the evaluation of future possibilities, rather than the ascertainment of historical facts. The risk of dissipation might justify an order although the probability of the risk eventuating is less than 50 per cent. But, as the risk of dissipation must be a real and not merely a theoretical one, it must have an evidentiary basis. Where a fact is alleged by the plaintiff in support of its case about the risk, but there is contrary evidence from the defendant, must the fact be proved to the court’s satisfaction as if the application for the freezing order was the trial of the case? In my view, a plaintiff need not do so. A freezing order is interlocutory in nature; it does not involve a final determination of the parties’ positions. Usually it is made in circumstances of urgency in which the court is unable to conduct an extensive and conclusive factual inquiry in a way which is fair to both parties. Where the factual basis for the plaintiff’s case about the risk of dissipation is disputed, the risk will commonly have to be evaluated with the recognition that the factual basis for it is in doubt. Nevertheless, the possibility of the plaintiff’s evidence being correct, considered with other facts and circumstances, might mean that there is a sufficiently serious risk of the frustration of the satisfaction of a judgment as to justify the making of a freezing order. …
The wife at present has as at the date of her financial statement 28 April 2021 about $1,175,000 in bank accounts under her control. In submissions, counsel for the husband sought to restrain the disposition of those funds to any sum less than $800,000 pending further order.
The wife has previously sought to remove funds to accounts controlled by the mother, perhaps under the misguided apprehension that such funds would thus be removed from the Court’s consideration in these proceedings. There may be a future risk of disposition of funds by the wife.
The orders sought by the husband would facilitate the wife having access to funds of about $375,000 pending further order. In all the circumstances, it is proper that an order be made as sought by the husband pending further order, such order being clearly on the understanding that in the event that the wife seeks access to further capital funds for good reason and with a clear accounting of funds expended by her, she may make application to the Court for further orders.
Orders will be made accordingly.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster. Associate:
Dated: 28 May 2021
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