SAFFIN & SAFFIN
[2020] FamCA 785
•22 September 2020
FAMILY COURT OF AUSTRALIA
| SAFFIN & SAFFIN | [2020] FamCA 785 |
| FAMILY LAW – CHILDREN – Interim parenting orders – parental responsibility – with whom the children live – where benefit to the children of a meaningful relationship with both parents – equal shared parental responsibility – orders for the children to spend week-about time with each parent – injunction to restrain relocation – need for the injunction not established. FAMILY LAW – PROPERTY – interim proceedings – injunctions – where both parties seek to restrain the other from dealing with the profits of the dissolution of the partnership – whether the restraint is proper – orders made. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 79, 114 Family Law Rules 2004 (Cth) r 5.09 |
| Goode & Goode [2006] FamCA 1346 U & U (2002) 211 CLR 238 |
| APPLICANT: | Mr Saffin |
| RESPONDENT: | Ms Saffin |
| FILE NUMBER: | CAC | 798 | of | 2020 |
| DATE DELIVERED: | 22 September 2020 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 16 September 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Blank |
| SOLICITOR FOR THE APPLICANT: | Dobinson Davey Clifford Simpson |
| COUNSEL FOR THE RESPONDENT: | Mr Stagg |
| SOLICITOR FOR THE RESPONDENT: | Parker Coles Curtis |
Orders
In relation to the children:
That the mother and father have equal shared parental responsibility in relation to the children of the marriage, X (born … 2013) and Y (born … 2015).
Subject to written agreement to the contrary (including by sms):
(a)the children live with the mother and father respectively in alternate weeks during NSW school term time with changeover to take place at the conclusion of school or preschool each Friday (or 3:00pm if not a school day);
(b)unless otherwise agreed in writing term time shall recommence each term at the return of school for the term to the parent with whom the children did not spend the end of the school holidays;
The children live with each parent for half of each NSW school holiday period on the following basis:
(a)One half of the school holiday period means the number of nights in each holiday period divided by two, and in the event there is an uneven numbered nights the children spend the additional night with the father.
(b)Unless otherwise agreed, the children will spend the first half of the school holiday period with the father.
In relation to the property:
The parties are restrained from dealing with the proceeds of the dissolution of the D partnership, being what remains of the $238,513.51 retained by the Husband, part of which has been identified by him as held in the trust accounts of E Lawyers and Dobinson Davey Clifford Simpson, and the $238,513.51 held in the controlled monies account held by the solicitors for the Wife other than in accordance with these orders:
The Husband may withdraw the sum of $50,000 for the payment of legal expenses;
The Wife may withdraw the sum of $50,000 for the payment of legal expenses.
The orders of 16 September 2016 that otherwise restrain the parties in respect of the monies referred to in the above order are discharged.
The Wife’s applications in respect of Child Support and spousal maintenance are transferred to the Registrar’s list, pending application to restore them for determination.
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 Saffin & Saffin 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 798 of 2020
| Mr Saffin |
Applicant
And
| Ms Saffin |
Respondent
REASONS FOR JUDGMENT
These proceedings concern interim issues between the parties spanning arrangements for their children, restraints in respect of property, use of their property, costs, the scope of the proper parties to the proceedings, disclosure, child support, restraint of the Mother from relocating and spousal maintenance.
The determination of the interim issues was hampered by the shifting ground pursued by the parties as to which aspects of their interim dispute they each sought to pursue, and by disregard for the Rules in relation to the material that may be relied upon during interim proceedings.
In particular, the Father sourced the evidence that he relied upon from various affidavits filed in the proceedings, rather than the single affidavit permitted pursuant to the Rules.
Rule 5.09 is in the following terms:
The following affidavits may be relied on as evidence in chief at the hearing of an interim or procedural application:
(a)subject to rule 9.07, one affidavit by each party;
(b)one affidavit by each witness, provided the evidence is relevant and cannot be given by a party.
Rule 5.09 has the important purpose of assisting both the Court and the parties to be able to readily identify the material relied upon in pursuing interlocutory remedies. Failure to comply with the Rule risks injustice in an individual hearing as parties are confronted with material drawn from diverse affidavits, potentially being caught by surprise. Similarly, failure to comply with the Rule renders the judicial task more difficult and apt to go astray.
At the commencement of the hearing, the parties refined the issues in dispute between them. They agreed that the spousal maintenance and child support aspects of their dispute be adjourned. They agreed that the issue in relation to whether the Mother’s parents and their corporate entity should be joined also be adjourned, pending litigation of that same issue in the Supreme Court of NSW. Similarly, the parties progressed between themselves the issues as they related to disclosure, without those matters being able to be resolved in the confines of the interim hearing.
This left the matters that the parties identified as a priority being the arrangements for the children, the restraint of the Mother from relocating from the F Town region, and as to their ability to use cash sums derived from the dissolution of their pastoral partnership in pursuit of their litigation.
The parties identified the following material as that which they relied upon for the interim hearing:
For the Mother:
a)The Mother’s affidavit of 19 June 2020;
b)The Mother’s affidavit in relation to parenting of 11 September 2020;
c)Reference to the Father’s affidavit of 20 August 2020 at [17-18] and of 30 April 2020 at [15-20, 60-65], along with his financial statement.
For the Father:
a)The Father’s affidavit of 21 August 2020 from [20];
b)The Father’s affidavit of 30 April 2020 at [18-45];
c)The Father’s affidavit of 15 September 2020 responding to the Mother’s parenting affidavit of 11 September 2020
The parenting dispute
There were two aspects to the dispute in relation to the children. At present, the two children of the parties, X (seven years old) and Y (five years old) live primarily with the Mother and spend substantial and significant time with the Father, each alternate weekend from Friday until Monday, and half of school holidays. The Mother asks that this arrangement continue.
The Father seeks that the children live with each parent on a week about basis with handovers to occur each Friday.
The parties are also at odds about parental responsibility. The Father seeks an order for equally shared parental responsibility, while the Mother seeks that there be no order.
Finally, in relation to the children, the Father seeks orders to restrain the Mother from relocating the home of the children away from the F Town region where the parties and the children currently live.
Applicable law
The arrangements for X and Y are to be determined with the paramount consideration being, pursuant to s 60CA, the best interests of each of them. That is to be determined on consideration of the matters set out at s 60CC of the Act, but in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA.
In doing this, the Court is obliged to take proper account of the positions of the parties, the evidence led and the arguments pursued, while remembering that these do not set the boundaries for making a decision as to what is in a child’s best interests, those boundaries being set by the objects and considerations set out in the legislation.[1]
[1]U & U (2002) 211 CLR 238.
The Court is also required, pursuant to s 61DA, to presume that it is in the best interests of the child for the parents to have equal shared parental responsibility unless the presumption is rendered inapplicable, inappropriate (in interim proceedings) or rebutted.
If an order is to be made for equal shared parental responsibility then the Court is to follow the reasoning process set out in s 65DAA and described by Boland J in Morgan v Miles[2] as “the careful exercise of a structured discretion to determine the appropriate order to be made”. That process calls for the sequential consideration of orders for equal time with parents, followed by orders providing for substantial and significant time with a parent prior to a consideration of other options.
[2] (2007) FLC 93-343.
In interim proceedings, the Court is limited, by the nature of the proceedings themselves, in the manner of consideration of the factual matters that underpin a decision as to what is in a child’s best interests. It is necessary[3] to keep in mind the statements in Goode & Goode[4] that at an interim hearing it is important to identify the agreed/uncontested facts and that consideration of the s 60CC factors is likely to be limited, given that there may be little uncontested evidence on which findings can be made.
[3]SS v AH [2010] FamCAFC 13 at [81].
[4] [2006] FamCA 1346.
Despite this limitation,[5] apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[5]SS v AH [2010] FamCAFC 13 at [100].
This dispute arises in the following context.
The Mother has usually been the primary carer for X and Y, save for a short period of time where the Father primarily cared for X and a recent period where the care of the children has been equally shared. Following the parties’ separation at the end of 2017, the Mother and children moved from F Town and the family home to stay with the Mother’s parents in Sydney. The Father and Mother arranged initially for the children to spend each second weekend with the Father, a task that would have involved considerable travel. After two months, at the Father’s request this decreased to half of the school holidays, until April 2019 when the Father moved out of the former family home in F Town and the Mother and children moved back into the home. The Father again commenced to spend each second weekend with the children from this time, along with the first week of each school holiday period, until early May when, in the context of COVD-19 arrangements that moved schooling to online at home, the parties commenced week about time. The Mother describes this as a trial.
The Mother has alleged that she has been subjected to serious family violence at the hand of the Father.
The Mother alleges that the Father has sexually assaulted her, verbally abused her, damaged property in her presence and been violent to animals owned by the parties. The Father denies that he has behaved in such a fashion.
The Mother’s evidence was as to limited involvement by the Father with the children during the relationship, leaving the bulk of the care of the children to the Mother, including planning in respect of providing for X’s special needs. The Father disputed this characterisation, asserting his involvement in the daily routine for the children. However, it should be accepted that for the period the children were with the Mother in Sydney his involvement would have been more limited.
The Father asserts that he has asked for week about arrangements since the Mother returned to F Town in July 2019.
Between 9 April and mid-June 2020, the parties trialled a week about arrangement while the children had special schooling arrangements due to COVID-19. The Father accepted that the Mother trialled this on the basis that it being the ongoing arrangement was contingent on whether it went well.
The Father provides a sms from the Mother on 24 July 2020 in which the Mother suggested that week about time commence (or rather recommence) on 24 July 2020.
The Father says that the Mother brought the arrangement to an end on 13 June 2020, saying that the arrangements should revert back to the children spending three nights per fortnight with the Father. The Mother says that she had concerns and wanted mediation to take place before formalisation of arrangements.
The Father described positive arrangements for the children when they lived half time with him, in terms of their general interactions and schooling arrangements. He describes positive interactions with the children.
The Mother accepts that the children were happy during the equally shared care period, although the children expressed to her that they did not wish to be away from her for so much time. She asserts that the children have expressed to her that they want to retain her home as their main home.
Discussion in relation to the child related dispute
As observed above, interim proceedings carry inherent limitations in terms of the resolution of factual disputes, pushing the Court to dealing, as far as possible, with less contentious aspects of the evidence, while taking proper account of the asserted risks.
In this case, the contested violence allegations are sufficient to render the presumption in favour of equally shared parental responsibility inapplicable. That does not directly answer the issue as to what the arrangements should be for the allocation of parental responsibility.
The Father seeks an order for equally shared parental responsibility, the Mother for no order, leaving parental responsibility jointly held. The nature of the allegations made in this case points away from an order for equal sharing of parental responsibility. Whether or not the allegations made by the Mother are true, the allegations themselves indicate a poor environment for the cooperation in decision-making required by an order for equally shared parental responsibility.
However, the categories of decisions that require such cooperation are limited. The issues most likely engaged in this case relate to the general area in which the children will live (which at present, on the interim proceedings, is not contentious), education in the shorter term (which again does not appear to be contentious) and medical responses, including the management of X’s special needs. This points to limited need for cooperation, other than in respect of X. Cooperation in relation to the management of X’s needs is likely to benefit X. Even if it is difficult for the parties to reach cooperation in respect of such decisions, it is imperative that there be a common understanding of and commitment to the arrangements for X. An order for equally shared parental responsibility promotes the obtaining of a common position and points to such an order being in the best interests of, at least, X.
If the equal sharing of responsibility regarding X is to take place, it is appropriate that it also be equally shared for Y so that there is a single regime in place for decision making for both children. Given the limited range of issues likely to be in contention at this interim stage, an order should be made for equally shared parental responsibility as in the children’s best interest.
This then requires the consideration of other arrangements for the children as set out at s 65DAA of the Act.
An equal time arrangement has been trialled by the parties. The parties do not point to an impediment posed by a lack of reasonable practicability.[6] If such an order is in the children’s best interests, consideration must be given to the making of such an order.
[6] See s65DAA and MRR v GR (2010) 240 CLR 461.
Those best interests fall to be determined on the basis of a number of the s 60CC considerations as raised by the parties’ material.
The prominent considerations in this case are the primary considerations, as they deal with risk of harm through exposure to family violence, and the benefits of meaningful relationships, along with, and in part encompassing, issues arising from the nature of the relationships between the children and each parent, the capacity of each parent, and the views of the children.
The risks associated with exposure to family violence are contentious in this, as in many cases. The Mother makes serious allegations of violence against the Father, which are contested by him. If the children were to be exposed to such, it may be inferred that it would be strongly against their best interests and harmful to them in their development.
However, in assessing this, it should first be noted that this is not a contest as to whether the Father will spend unsupervised time with the children but rather, as to the extent of that time. The issue becomes one of the likelihood of such exposure with increased time with the Father.
The conclusion of a significant likelihood of such exposure if the parties are to equally share time is undermined by the arrangements that the parties have come to prior to the matter coming before the Court.
Those arrangements speak firstly to the capacity of the Mother to care for the children as the Father at least acquiesced to the children being primarily in her care in Sydney for a significant period post-separation. Secondly, the trial of equal time by the parties points away from an assessment that the children are at immediate risk with the Father.
The Father testifies as to the benefits of such arrangements for the children that he has observed. The Mother does not make observations that undermine or contradict the evidence of the Father on this point. It is unclear what it was that pointed to the need to end the arrangement, or what it was that might indicate an inadequacy in the equally shared time as far as the children were concerned. The Father’s evidence points to such an arrangement being in the children’s best interests and his evidence on that point is not undermined to any significant degree.
The Mother points to comments made by each of the children in relation to desiring that their primary residence be with her. However, noting their age, and the lack of circumstances around such comments, they are not views to be accorded significant weight.
The parties’ trialling of, and the apparent success of equal time points to such an order being in the children’s best interests on an interim basis and orders to that effect should be made.
Restraint on relocation
The Father sought an injunction restraining the Mother from relocating from the F Town region with the children. It is necessary pursuant to s 68B that the Court be satisfied that such injunction is appropriate.
In this case, the need for such an injunction has not been demonstrated. It is true that the Mother relocated with the children following separation to Sydney. She has, however, returned to the F Town region with the children. No circumstances surrounding that return point to the need for an injunction.
It is also the case that the Mother has communicated to the Father that she would like to return with the children to Sydney. She sought his agreement and, since being unable to secure it, has indicated that she will not move during the pending proceedings. Through her legal representatives, she has advised the Court that she does not seek to move. These factors point away from the need for a restraint of the Mother, particularly as it may be thought that she would be acutely aware of the difficulties she would face should she move after advising the Court that she would not.
Finally, it was suggested that her new relationship founded a risk sufficient to warrant restraint in moving. However, her new partner has moved in with her in the F Town region. This does not speak to a heightened risk that the Mother might move.
Restraint by injunction is not warranted and the relief is refused.
The property dispute
During their relationship, the parties acquired real property and conducted a pastoral partnership (D partnership) that involved both a crop management business and a feedlot business.
The acquisition of the real property was funded, in part, by monies provided by the Mother’s parents and the Father’s mother. The parties are at odds in relation to whether the monies provided by the Mother’s parents ($350,000) were a gift or a loan. The Mother asserts that they were a loan. The Father asserts that, despite his execution of a loan agreement, the monies were a gift. The Mother’s parents are currently pursuing the debt, having purported to call in the loan, in the NSW Supreme Court (the Supreme Court proceedings).
Similarly, the development of the feedlot business was funded in large part by monies provided by the Mother’s parents ($1.8m) via their corporate entity, G Pty Ltd.
The Father does not appear to contest that the monies advanced by the Mother’s parents through G Pty Ltd for the feedlot business were anything but a loan. In his affidavit filed 30 April 2020 at [35], he concedes that the monies were described as a loan prior to their receipt, although at [37] he disputes the agreement in respect of the loan, although accepting at [38] that the signature to the loan agreement appears to be his.
G Pty Ltd has since commenced proceedings in the Supreme Court of NSW for the recovery of these sums, with the parties due to undertake mediation on 23 September 2020 (also the Supreme Court proceedings).
The Father proposes that the Supreme Court should transfer the proceedings to the Family Court of Australia pursuant to the cross-vesting legislation. Without making any determination in relation to such an approach, it is as yet neither clear that this option is available or appropriate.
As noted above, during the marriage, the parties together operated D partnership. The operation of this business continued post separation, in the hands of the Father, until he dissolved the partnership in about March 2020. From that dissolution the Father asserted that a net amount of $476,000 was obtained. From this amount the Father retained $238,000 (his ‘share’), and attributed a further $238,000 of those proceeds to the Mother (her ‘share’), placing her ‘share’ into an account that the Mother did not have access to.
It is these sums that are the subject of the parties’ interim dispute.
The Mother seeks to restrain the Father in his use of his ‘share,’ such that his further access be restricted to the use of a further $50,000, and to access $50,000 of her ‘share’ in order to fund her litigation.
The Father seeks that there be no restraint on his use of his ‘share’ as he uses it to litigate in both the Supreme Court proceedings and in this Court. He seeks that the Mother be prevented from accessing any part of her ‘share’.
The sources of power to provide for the funding of litigation were observed to be diverse in Strahan, spanning, potentially, powers in relation to property adjustment pursuant to s 79, spousal maintenance pursuant to s 72 and the costs power at s 117. Section 114 has also been identified as a potential source of power in relation to litigation funding. The parties were asked to identify the powers relied upon.
The Wife initially characterised the mutual release of the $50,000 amounts as pursuant to s 79, then amended this to pursuant to s 117. Little explanation was given of why the discretion pursuant to s 117 should be exercised, noting that the starting point at s 117 is that each party will bear his or her own costs. The use of s 117 for litigation funding requires sufficient justification to be brought to bear by an applicant. The Father observed that s 117 would not cover his intended use of monies to pursue litigation in the Supreme Court, rather than just this Court. He identified the powers as arising pursuant to s 79.
The Father says that he has so far used his ‘share’ in defending the Supreme Court proceedings. He says that he has $157,000 of those funds remaining, having deposited $90,000 of those funds into the trust account of E Lawyers who represent him in the Supreme Court proceedings, with $67,000 being held on trust by his family lawyers, Dobinson Davey Clifford Simpson Lawyers. He does not identify what has become of the rest of the amount. The Father says that he has incurred almost $70,000 fees with E Lawyers who estimate further fees of approximately $95,000. His family lawyers estimate their fees at $85,000 to $100,000, having incurred $38,000 to date.
At face value, these two sets of $238,000 are, respectively, the property of the Husband and of the Wife. The parties did not appear to disagree with this characterisation. This means that no order adjusting interests pursuant to s 79, or order pursuant to s 117 is required to enable the parties to use these sums in the litigation, or even how they might otherwise please to use the sums. Each appeared to accept that the ownership of the funds vested in each of them and so, as perhaps implied by Stanford,[7] the position is that each is at liberty to use the sums unless otherwise restrained. The issue is rather whether a restraint should be imposed to protect the pool of property of the parties from dissipation and the ultimate undermining of the exercise of the s 79 discretion.
[7]Stanford v Stanford (2012) 247 CLR 108.
The question then becomes one of whether a restraint should be imposed.
The Father’s position is that the Mother should be wholly restrained from use of her ‘share’. He asserts that her dissipation of even $50,000 of her ‘share’ would prejudice his ultimate s 79 claim.
He asserts that his access to funds to pursue the Supreme Court proceedings, where he seeks to characterise the sums provided as gifts rather than loans, is necessary to preserve the pool, as characterisation of the monies as loans would leave a greatly diminished net pool. Conversely, the Mother’s position is that the monies are loans, and that the Father’s conduct of the Supreme Court litigation is thereby misplaced. Implicitly, the Father faces a waste argument being mounted against him in relation to funds used by him in the Supreme Court proceedings if he is unsuccessful.
This factual dispute is not one that the parties have asked me to resolve at this stage of the proceedings, nor could it be resolved in the interlocutory context of the current dispute.
The matter falls to be determined on the basis of what, if any, restraint by injunction pursuant to s 114 is proper to safeguard the property of the parties pending an exercise of the s 79 power (should such an exercise be warranted following an identification of the legal and equitable interests of the parties).
Although the power under s 114, insofar as it may be used to protect a party’s ultimate s 79 claim, has been described as a power to be exercised more liberally under the Act than under the general law[8] it is useful to bear in mind the general principles in relation to Mareva injunctions as set out by McDougall J in Skyworks NSW Pty Ltd v Drummoyne Pty Ltd,[9] in the following neat summary:
Risk of removal or dissipation of assets?
The test
[21] Mr Roberts of Senior Counsel, who appeared with Mr Byrne of Counsel for the builder, submitted that the question was not whether the defendants intended to frustrate any judgment that the builder might recover but, rather, whether there was a serious risk that the builder’s recovery under any judgment might be frustrated.
[22] Mr Giles of Senior Counsel, who appeared with Mr Sheldon of Counsel for the defendants, submitted that the purpose of a freezing order was not to convert an unsecured creditor into a secured creditor, but to prevent dissipation of assets so as to frustrate satisfaction of any judgment that the builder might recover. He referred to PT Bayan Resources TBK v BCBC Singapore Pte Ltd.
[23] Mr Giles referred to a number of cases that framed the test by reference to the quality or evaluation of the risk. With great respect, and without wishing to write a treatise on freezing orders, I think that all that can be drawn from those cases is that there must be a real basis to think that there is a risk of dissipation, and hence of frustration. Mere suspicion, based on generalities, that this is so will not suffice.
[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 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.
[8] See Mullen v De Bry (2006) FLC 93-293 at [43].
[9] [2017] NSWSC 343.
It should also be acknowledged that it is necessary, as identified in Waugh,[10] to consider whether the restraints to be imposed go further than is necessary to “prevent the abuse or frustration of the court’s process in relation to the matter within its jurisdiction.”
[10]Marriage of Waugh [2000] FamCA 1183 at [45].
That determination is to be made against the background of the final orders sought by each of the parties which, at this stage, are yet to be fully particularised. The parties are, at least, in contest as to who should receive the ‘Z’ property currently held by them together. Such an adjustment must be considered to be likely to be impacted by the cash reserves held by each of the parties, and by the determination of the debt position in respect of the Mother’s parents. That is, each position is potentially undermined by the dissipation of the cash reserves currently held by the parties.
In determining what restraint is justified as proper under such circumstances, it is most instructive to examine the cases advanced by each of the parties in relation to the sums.
On the Mother’s case, her concession that $50,000 could be released to the Father (if mutual in releasing the same sum to her), stands against the idea that such a release will undermine an ultimate property distribution to her pursuant to s 79. Inherently, on her case, the Father, in using that sum in pursuit of the Supreme Court litigation, runs the risk of a waste finding, characterising his use of the $50,000 as a premature distribution in his favour, but that such a finding would not prejudice her overall position.
On the Mother’s case, correspondingly, the allocation of the $50,000 to both parties at this stage could not compromise a proper s 79 adjustment.
On the Father’s case, should he be successful in his claim that the monies received from the Wife’s parents were a gift rather than a loan, then the pool becomes more than ample to accommodate the release of the $50,000 to the Wife as well as to him.
It is less clear what the position might be if the Father is unsuccessful in characterising the monies as other than loans, other than to assert that if $50,000 was to go to the Wife there may not be sufficient to properly distribute the property pursuant to s 79. As against this assertion, it is difficult to accept that if the Father is so unsuccessful, and consequently faces the prospect of having taken funds as a premature distribution in pursuit of the Supreme Court litigation, that the Wife’s similar taking of $50,000 impinges upon his claim. It was incumbent on the Father to demonstrate this as a real risk and he has not done so.
On either the Wife’s or the Husband’s case in respect of the pool, the pool is sufficient to sustain the parties’ use of the $50,000 each.
This analysis means that orders for the release of the mutual sums of $50,000, being release of sums already owned in the relevant sense by each party, not only involves no adjustment of their property interests, but does not impinge upon their relative s 79 claims.
The same cannot be said of the Husband’s position that he be at liberty to deal with the whole of the remaining $157,000 as he sees fit, including in pursuit of the Supreme Court litigation. He has indicated a settled intention to (unless the Supreme Court proceedings are resolved at mediation) utilise a significant proportion of his remaining ‘share’ in the pursuit of that litigation.
If unsuccessful in his pursuit of the Supreme Court litigation the dispersal of his ‘share’ runs a strong risk of compromising the Mother’s claim against a net pool reduced by heavy indebtedness to the Mother’s parents and their corporate entity.
This means that restraint of the Father beyond the $50,000 is proper.
As these are interlocutory determinations, based on both changing circumstances and changing clarity of circumstances, this is a matter that stands to be revisited.
At present, however, the circumstances justify the restraint of access to funds beyond the $50,000 mark as proper to protect the parties’ claims under s 79. Correspondingly, the restraints imposed at the hearing of this matter require release to enable the parties to access the $50,000 and to ensure that they are not restrained more than is necessary.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 22 September 2020.
Associate:
Date: 22 September 2020
Husband’s Orders Sought
Interim or procedural orders sought
That the Respondent do all things and sign all documents to facilitate the transfer of the below proceedings to this Court for determination by this Court:
a. District Court Statement of Claim number 2019/…0, First Plaintiff, Mr H, Second Plaintiff Ms H, First Defendant Ms Saffin, Second Defendant Mr Saffin;
b. Supreme Court Statement of Claim number 2019/0…4 Plaintiff G Pty Ltd Pty Limited, First Defendant Mr Saffin trading as D partnership, Second Defendant Ms Saffin trading as D partnership.
That each party provide financial disclosure within 21 days.
That the mother and father have equal shared parental responsibility in relation to the children of the marriage, Y (born … 2013) and Y (born … 2015).
That the children live with the mother and father respectively in alternate weeks with changeover to take place at 3.00pm each Friday.
That the children live with the mother and father for one half of all school holiday periods and unless specifically defined., this shall mean a gazetted school holiday period for the school attended by X and shall be deemed to include:
a. The first weekend after school term ends;
b. The weekend before school recommences; and
c. All pupil free days at the commencement of the term.
For the purpose of calculating one half of the school holiday period:
One half of the school holiday period means the number of nights in each holiday period divided by two, and in the event there is an uneven numbered nights the children spend the additional night with the father.
Unless otherwise agreed, the children will spend the first half of all school holiday periods with the father.
That the mother be retrained from moving the children's place of residence from the F Town/J Town District without written agreement of the father or Order of the Court.
That the mother be restrained from saying unkind or negative things about the father in the presence or hearing of the children.
That the parties be restrained from discussing the children's care arrangements or these proceedings in front of the children or within their hearing.
Wife’s Orders Sought
That Paragraph 1 of the interim / procedural orders sought in the Initiating Application of the Applicant Husband is dismissed.
That the hearing and determination of paragraphs 2 and 3 of the interim / procedural orders sought in the Response to Initiating Application of the Respondent Wife be adjourned to a later date.
That the husband pay the Wife the sum of $70,000 by way of lump sum spouse maintenance, calculated from January 2019 to the date of this Order.
That pursuant to s 72 of the Family Law Act, ss 117 and 124 of the Child Support (Assessment) Act, the Husband shall pay maintenance and child support to the Wife in the sum of $900 per week until further Order.
The solicitors on record in these proceedings comply with Rule 19.04 Family Law Rules 2004 (Notification of costs) on the next allocated Court event that the Honourable Court orders.
Partnership Funds
That within twenty-four hours (24) of these Orders, the Husband shall do all acts and things and sign all documents necessary to transfer the sum of $238,513.51 to the wife by depositing that amount of money into a bank account nominated by the Wife or her nominee ("the Wife's nominated account") and it is NOTED that the husband is presently holding these funds in a Commonwealth Bank account ending xx-…79 in his name.
That following receipt of the sum of $238,513.51 from the Wife pursuant to Order 4, the Wife shall thereafter be at liberty to thereafter withdraw up to the sum of $50,000 from the Wife's nominated account for the payment of legal costs and disbursements, otherwise the Wife is hereby restrained from further making any withdrawals from the Wife's nominated account until further Order or unless the Wife obtains the prior written consent of the Husband.
That within forty-eight (48) hours of these Orders, the Husband shall do all acts and things and sign all documents necessary to withdraw all funds presently held in his family law solicitor's Trust Account and the Trust Account of his commercial solicitor and shall deposit those funds into his Commonwealth Bank Account ending in account number xx- …87.
The Husband shall thereafter be at liberty to withdraw up to the sum of $50,000 from his Commonwealth Bank Account ending in account number xx-…87 for the payment of his legal costs and disbursements, otherwise the Husband is hereby restrained from making any further withdrawals from his Commonwealth Bank Account ending in account number xx-…87 until further Order, or unless the Husband obtains the prior written consent of the Wife.
That pending further Order, and unless the Husband is acting in compliance with these Orders, the Husband be and is hereby restrained from further dissipating any assets derived from the Partnership, save for the purpose of the payment of his legal fees up to the sum of $50,000. Valuation of K Pty Ltd ABN …
That pursuant to Rule 15.45 of the Family Law Rules 2004, Mr L of M Group ("Mr L") is appointed as a single expert for the purposes of preparing a written valuation report as to the value of the Husband's interest in K Pty Ltd (ABN …) on a value to owner basis.
That the Husband shall be responsible in the first instance for payment of the reasonable fees and disbursements of Mr L with the Wife's equal share to be repaid to the Husband upon property settlement.
For the purposes of the appointment of Mr L pursuant to these Orders, the following shall apply:
13.1 The Husband shall provide to Mr L in a timely manner copies of all documents in his possession, custody or control as may be requested by Mr L (with copies to be provided to the Wife's solicitors);
13.2 At all times, all instructions to Mr L shall be in writing.
That within seven (7) days of the date of these Orders, the Husband shall instruct his solicitors to agree and sign the draft joint letter of instruction to Mr L or shall advise of any amendments required.
That within a further seven (7) days of the date of these Orders an agreed joint letter of instruction shall be provided to Mr L and the parties are granted liberty to relist the matter on seven (7) days notice to the Court and to each other party regarding any issue in dispute arising in relation to the joint letter.
That the parties are granted liberty to relist the matter on seven (7) days notice to the Court and to the other party.
F Town Valuation
That the Husband nominate one of the following valuers for the purposes of preparing a written valuation report as to the value of N Street, F Town NSW (“the Report”) with the terms of reference for the letter of instruction to the joint valuer to be agreed between the parties in writing beforehand: 17.1 Ms P, Q Group 17.2 Mr R, S Group 17.3 Mr T, U Group
That pursuant to Rule 15.45 of the Family Law Rules 2004, the valuer nominated by the Husband pursuant to Order 11, or such other valuer as the parties agree to in writing (“the Real Estate Valuer”) shall be appointed as a single expert for the purposes of preparing the Report.
That the Husband shall be responsible in the first instance for payment of the reasonable fees and disbursements of the Real Estate Valuer with the Wife's equal share to be repaid to the Husband upon property settlement.
For the purposes of the appointment of the Real Estate Valuer pursuant to these Orders, at all times, all instructions to the Valuer shall be in writing.
That within seven (7) days of the date of these Orders, the Husband shall instruct his solicitors to agree and sign the draft joint letter of instruction to the Real Estate Valuer or shall advise of any amendments required.
That within a further seven (7) days of the date of these Orders an agreed joint letter of instruction shall be provided to the Real Estate Valuer and the parties are granted liberty to relist the matter on seven (7) days notice to the Court and to each other party regarding any issue in dispute arising in relation to the joint letter.
That the parties are granted liberty to relist the matter on seven (7) days notice to the Court and to the other party.
Valuations of other disputed assets of the parties
If the value of any asset of the parties is not agreed within 28 days from the date of these Orders, the parties shall do all acts and things and sign all documents necessary to cause that item to be valued by a single joint expert with the valuation and the costs of such valuation to be shared equally unless otherwise agreed.
IT IS NOTED that the Wife nominates Mr W to prepare a valuation of Stock & Station including, Shade Cloth, Wheeled Loader, Scales, Auguer, Feed Cart, Quadbike, Straw Bales, Hay Bales. Financial Disclosure
That within 7 days of the date of these Orders, the Applicant Husband shall produce to the Respondent Wife a copy of the Schedule of Documents prepared by him or on his behalf in accordance with Orders 3 and 4 made on 21 August 2020.
Mediation
That upon the completion of the financial disclosure and valuation process and no later than 3 months of the date of these Orders or such other date as agreed between the parties in writing, the parties shall take all steps necessary to arrange for and participate in a private financial mediation forthwith thereafter with the mediator to be agreed between the parties and with the cost of mediation to be borne at first instance by the Husband with a right to reclaim the applicant’s share from any property settlement.
Parenting
That the Father’s interim application for equal shared parental responsibility in respect of X (born: … 2013) and Y (born: … 2015) (“the children”) be dismissed.
That the children live with the mother.
That during school term, the children shall spend time with the father on each alternate weekend from the conclusion of school or preschool on Friday (or 3:00pm if not a school day) to 8:30am the Monday immediately following or such other times as agreed between the parties in writing (including SMS).
That the children spend time with the father for one half of the school holiday periods and unless specifically defined, this shall mean a gazetted school period for the school attended by X and shall be deemed to include:
32.1 The first weekend after school term ends;
32.2 The weekend before school recommences; and
32.3 All pupil free days at the commencement of the term.
For the purposes of calculating the one half of the school holiday period:
33.1 One half of the school holiday period means the number of nights in each holiday period divided by two, and in the event there is an uneven numbered nights the children spend the additional night with the father.
Unless otherwise agreed, the children will spend the first half of the school holiday period with the father.
That the balance of the Father’s interim parenting application be dismissed.
That the Father’s Application to restrain the mother from moving the children’s place of residence from the F Town/J Town District without written agreement of the father or Order of the Court be dismissed.
Such further or other order as this Honourable Court sees fit.
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