Kozlov & Kozlov

Case [2021] FamCA 346

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
Applicant
AND:

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:

  1. 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…

Continue reading Kozlov & Kozlov

Sign in free to access the full text

Details
AGLC
Kozlov & Kozlov [2021] FamCA 346
Case
[2021] FamCA 346
Decision Date

CaseChat Overview and Summary

In *Kozlov & Kozlov*, the applicant husband sought interim spousal maintenance and injunctions restraining the respondent wife from dissipating funds under her control. The dispute arose in the context of family law proceedings, with the husband expressing concerns about the potential dissipation of significant capital funds held by the wife, particularly in light of a recent alleged violent incident involving the wife's father.

The court was required to determine whether to grant interim spousal maintenance to the husband and whether to impose injunctions to secure funds held by the wife. Specifically, the court considered the principles governing the grant of interim spousal maintenance and the circumstances under which an injunction would be appropriate to prevent the dissipation of assets pending final resolution of property matters.

Foster J reasoned that the husband had established a need for interim spousal maintenance, noting the wife's receipt of substantial income protection payments and a significant TPD payout. The court also found that there was a sufficient risk of dissipation of funds by the wife, evidenced by a recent large transfer of funds to her mother and the husband's expressed concerns. Applying the relevant principles, the court concluded that it was appropriate to grant injunctions to secure a portion of the wife's funds and to order the payment of interim spousal maintenance from capital.

Consequently, the court ordered the wife to pay the husband $350 per week in interim spousal maintenance, permitting her to draw from capital funds for this purpose. The wife was also restrained from reducing the balance of a specific bank account below $800,000 without the husband's consent or a further court order. All other interim applications before the court were dismissed.

Orders

Orders of the court

PAC 5679 of 2020

BETWEEN:

MR KOZLOV

Applicant

AND:

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).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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).

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.