Saffin & Saffin (No. 2)

[2020] FamCA 790

FAMILY COURT OF AUSTRALIA

Saffin & Saffin (No. 2) [2020] FamCA 790

File number(s):	CAC 798 of 2020
Judgment of:	GILL J
Date of judgment:	16 September 2020
Catchwords:	FAMILY LAW – property – restraint of funds pending delivery of judgment – where funds were placed into an account for Wife but inaccessible to Wife – where some of the funds are held in trust by the Husband’s law firms – where funds are at risk of dissipation to meet legal costs in other litigation – where the Wife seeks that both parties be restrained from the use of the funds save $50 000 for legal costs – where restraint is warranted
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	11
Date of hearing:	16 September 2020
Place:	Canberra
Counsel for the Applicant:	Mr Blank
Solicitor for the Applicant:	Dobinson Davey Clifford Saffin
Counsel for the Respondent:	Mr Stagg
Solicitor for the Respondent:	Parker Coles Curtis

ORDERS

CAC 798 of 2020

BETWEEN:

MR SAFFIN

Applicant

AND:

MS SAFFIN

Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	16 SEPTEMBER 2020

THE COURT ORDERS THAT:

1.The Husband is restrained from dissipating the sums of $90,000 currently held in the E Lawyers account and $60,000 currently held in the Dobinson Davey Clifford Simpson account pending judgment in these proceedings.

2.The parties’ costs of today are reserved.

IT IS NOTED THAT:

3.The parties and the Wife's parents and the Wife's parents’ corporate entity are due to take part in a mediation directed by the Supreme Court of New South Wales on 23 September 2020.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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).

REASONS FOR JUDGMENT

GILL J:

1. This is an order in relation to the restraint of particular funds pending the delivery of judgment which in part deals with whether or not such funds should be restrained.  The context of the argument is that the parties were previously engaged in a partnership pastoral business.  That partnership was dissolved some time ago and reaped net proceeds of $477,000, which it is the position of the parties’ forms part of the pool of property for distribution but at present is characterised as the property of each of the parties.

2. The Husband, who had control over those proceeds, took steps to protect a portion of those funds on behalf of the Wife, without enabling the Wife to have access to those funds.  In pursuit of that end, he caused the half of those proceeds being the sum of $238,000 to be paid into an account for the Wife, but which was held in his name and not accessible by the Wife.

3. Orders have been made by consent today to cause that sum of $238,000 to be paid into the controlled monies account of the solicitor’s for the Wife, pending further order being made enabling access to it or pending written agreement between the parties as to access to it.  Those orders are made in relation to those funds pending the delivery of judgment in these interim proceedings.

4. It leaves the position where the Husband has had access to the balance of the funds derived from the partnership, again being in the sum of $238,000.  He concedes that he has had the use of $38,000 of those dollars and that of the balance there is currently $90,000 held by a law firm called E Lawyers and $60,000 held by his family lawyers Dobinson Davey Clifford Simpson.  I am unaware of the balance of the $238,000. 

5. The monies held by E Lawyers are held in relation to collateral litigation, which is currently taking place between the Husband and the Wife's parents and a corporate entity controlled by the Wife's parents in the Supreme Court of New South Wales.  I am told that that litigation bears upon a contentious component of the pool of property between the parties pertaining to something characterised by the Wife and her parents as loans in the sum of approximately $1.85 million, or on the Husband's account a potential contribution on the part of the Wife in the sum of $1.85 million.  I describe it as potential because as yet the parties have not anchored their positions in relation to the property proceedings, though it is conceded that it is on the cards that could be a characterisation that is argued for that sum of money. 

6. The Husband has said that he requires funds to conduct litigation in the Supreme Court of New South Wales to characterise those monies as other than a loan as part of a pursuit to preserve the pool of property between the parties. 

7. The Wife's position in relation to the various funds held by the parties is that they should be restrained each but for a sum of $50,000 which the Wife indicates that she intends to use by way of payment of costs for legal proceedings. 

8. The Husband says there should be no restraint whatsoever, and in particular that he should not be restrained as to the funds that he might use in respect of the pursuit of legal proceedings, including in the Supreme Court of New South Wales. 

9. That leaves the matter as to what to do in respect of the funds currently held unrestrained by the Husband pending delivery of judgment in this matter in which it may be determined that he is entitled to use the funds in pursuit of those proceedings, or in which he may be restrained. 

10. Given the stated intention of the Husband to use funds in pursuit of that litigation in a context where he has not identified the quantum of funds that will be necessary to pursue that litigation and the litigation in this Court it can be inferred that those funds are immediately at risk of dissipation.  It is not the same as saying that such dissipation would be improper in any sense, merely that that stands to be determined in terms of risk in terms of the determination of the interim proceedings that are currently before me, which are about to be pending judgment.

11. Given the fast approaching mediation in the Supreme Court proceedings and other litigation in the Supreme Court proceedings it seems that the Husband is likely to have a pressing need for those funds to be released to continue that litigation.  The corollary of this is that release of the funds for the purposes of those litigation or failing to restrain the funds for the purposes of those litigation puts those funds at immediate risk of dissipation.  Given the matters that have been canvassed by the parties in relation to the interim proceedings then it is necessary that I form a view as to whether or not the Husband should be continued to dissipate funds in conflict with the application made by the Wife on the interim proceedings.  Pending judgment, it is appropriate that there be a restraint upon him in his capacity to do so. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       22 September 2020