NIELSEN & SPRINGER - [2018] FamCA 69

FAMILY COURT OF AUSTRALIA

NIELSEN & SPRINGER

[2018] FamCA 69

FAMILY LAW – SPOUSAL MAINTENANCE – Factors considered – Interim spousal maintenance order in favour of the mother – Where the father asserts that his liabilities exceed his income – Where the amount of spousal maintenance amount is reduced after an assessment of the financial circumstances of the parties

FAMILY LAW – INJUNCTIONS – Where the mother sought an injunction restraining the father from accessing monies held overseas – Where the mother feared the final property pool would be diminished prior to settlement – Principles to be considered when granting an injunction – Where there is a risk that the asset may be depleted prior to final settlement – Where an injunction is granted

Family Law Act 1975 (Cth) ss 77, 114(1), 114(3)

Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, 428 [122]
In the Marriage of Farr (1976) FLC 90-133
Kelleher & Anderson [2007] FamCA 137
Lampros & Anor & Lampros & Anor [2012] FamCA 415
Lawson & Crawford and Ors [2014] FamCA 1012 [52]
Hall & Hall [2016] HCA 23

APPLICANT:

Mr Nielsen

RESPONDENT:

Ms Springer

FILE NUMBER:

ADC

1483

2017

DATE DELIVERED:

15 February 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

8 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Anderson

SOLICITOR FOR THE APPLICANT:

CG Family Law

COUNSEL FOR THE RESPONDENT:

Ms Lee

SOLICITOR FOR THE RESPONDENT:

Georgina Parker Lawyers

Orders

That paragraph 1 of the orders made 31 May 2017 is discharged.
That by way of interim spousal maintenance the father pay to the mother the sum of TWO HUNDRED AND FORTY DOLLARS ($240) per week to a bank account as may be nominated to her.
That the father do within fourteen (14) days transfer to the trust account of his solicitor or such other interest bearing account in the name of the parties as may be agreed between the solicitors for each of the parties in writing a sum equivalent to THIRTY FIVE THOUSAND EUROS, such sum not to be withdrawn by either party SAVE AND EXCEPT as may be agreed in writing or by order of the Court.
That paragraph 6 of orders made 6 December 2017 be discharged.
Subject to Order 3 herein, that the father be restrained and an injunction be granted restraining him from dealing with, transferring, dispersing or making any withdrawal from monies standing to his credit in any overseas bank account of financial institution, but in particular Country F SAVE as to the sum of TWENTY THOUSAND EUROS (20,000) which he shall be able to withdraw at his election.

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 Nielsen & Springer 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…

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.

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Details

AGLC: NIELSEN & SPRINGER [2018] FamCA 69
Case: [2018] FamCA 69
Decision Date: 15 February 2018

CaseChat Overview and Summary

In the Family Court of Australia, Justice Berman considered an application by the mother for interim spousal maintenance and an injunction against the father. The dispute arose in the context of family law proceedings where the mother sought financial support from the father and sought to preserve assets held overseas.

The court was required to determine the appropriate amount of interim spousal maintenance, taking into account the financial circumstances of both parties, particularly the father's assertion of liabilities exceeding his income. Additionally, the court had to consider whether to grant an injunction restraining the father from accessing or dealing with certain overseas funds, given the mother's concern that the final property pool might be diminished before settlement.

Justice Berman reasoned that while the father claimed his liabilities outweighed his income, an assessment of their financial positions warranted an interim spousal maintenance order. The court reduced the previously ordered amount, reflecting a careful consideration of their respective financial capacities. Regarding the injunction, the court found a sufficient risk that the overseas asset could be depleted prior to final settlement, justifying the imposition of restraints.

Consequently, the court ordered that the father pay interim spousal maintenance of $240 per week to the mother. The father was also ordered to transfer €35,000 to a trust account, not to be withdrawn without agreement or court order. Furthermore, an injunction was granted restraining the father from dealing with his overseas bank accounts, save for a permitted withdrawal of €20,000.

Orders

Orders of the court

That paragraph 1 of the orders made 31 May 2017 is discharged.

That by way of interim spousal maintenance the father pay to the mother the sum of TWO HUNDRED AND FORTY DOLLARS ($240) per week to a bank account as may be nominated to her.

That the father do within fourteen (14) days transfer to the trust account of his solicitor or such other interest bearing account in the name of the parties as may be agreed between the solicitors for each of the parties in writing a sum equivalent to THIRTY FIVE THOUSAND EUROS, such sum not to be withdrawn by either party SAVE AND EXCEPT as may be agreed in writing or by order of the Court.

That paragraph 6 of orders made 6 December 2017 be discharged.

Subject to Order 3 herein, that the father be restrained and an injunction be granted restraining him from dealing with, transferring, dispersing or making any withdrawal from monies standing to his credit in any overseas bank account of financial institution, but in particular Country F SAVE as to the sum of TWENTY THOUSAND EUROS (20,000) which he shall be able to withdraw at his election.

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

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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