Saville and Saville - [2011] FMCAfam 269

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAVILLE & SAVILLE

[2011] FMCAfam 269

FAMILY LAW – Application for alteration of property interests – injunctions – assets in Australia and Canada.

Family Law Act 1975

Mullen & De Bry [2006] FMCAfam 561
Waugh & Waugh [2000] FamCA 1183

Applicant:

MS SAVILLE

Respondent:

MR SAVILLE

File Number:

SYC 1834 of 2009

Judgment of:

Altobelli FM

Hearing date:

4 March 2011

Date of Last Submission:

17 February 2011

Delivered at:

Sydney

Delivered on:

4 March 2011

REPRESENTATION

Counsel for the Applicant:

Mr Sansom

Solicitors for the Applicant:

Watts Mccray Lawyers

Counsel for the Respondent:

Mr Miller

Solicitors for the Respondent:

Robyn Sexton & Associates

ORDERS

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The Husband and the Wife each be restrained from increasing the amount presently outstanding and secured by way of mortgage on the property at Property K.
The Husband be restrained from increasing the limit of any and all lines of credit secured on the assets of the companies known as [1], [2], [3] and/or The Saville Family Trust, and any line of credit in the name of the husband with [omitted].
The Husband be restrained from dissipating and/or transferring the assets of [1].
The Husband notify the Wife in writing upon his obtaining employment and provide relevant particulars thereof;
In relation to the proceedings instituted against the Husband in the Superior Court of Ontario:-
(a)It is noted that upon his return to Canada the Husband intends to take steps to obtain legal advice as to defending those proceedings; and
(b)The Husband will keep the Solicitors for the Wife informed, in a timely fashion, with details of such advice and of the progress of and the prospects in relation to such litigation and of any offers of compromise that may from time be made; and
(c)That in the event that funds are needed to meet the legal costs of such proceedings the Husband will in the first instance provide the Wife’s Solicitors with the details thereof and in the event of there not being agreement as to the provision or source of those funds the Husband be at liberty to re-list the matter as to that, or associated matters, upon short notice.

THE COURT ORDERS THAT:

The matter be adjourned to 31 March 2011 at 9:30am for Mention.
The parties’ costs of today are reserved.

IT IS NOTED that publication of this judgment under the pseudonym Saville & Saville is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 1834 of 2009

MS SAVILLE

Applicant

And

MR SAVILLE

Respondent

REASONS FOR JUDGMENT

I deliver the following oral reasons in the matter of Saville. On 16 February 2011, I adjourned by consent the substantive proceedings between the parties and on 17 February, heard submissions in relation to interim issues arising out of that adjournment. Substantive proceedings relate to property settlement, maintenance and possibly child support.
The emerging issues seem to be not just assessment…

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.

Continue reading Saville and Saville

Details

AGLC: Saville and Saville [2011] FMCAfam 269
Case: [2011] FMCAfam 269
Decision Date: 4 March 2011

CaseChat Overview and Summary

The parties involved in the case are Saville and Saville. The nature of the dispute is centred around financial matters, specifically the management and security of assets during the course of matrimonial proceedings. The case was heard in a court of relevant jurisdiction, presumably within Australia given the context of the legal issues and remedies sought. The Wife, in her application, seeks orders to restrain the Husband from taking certain financial actions that could affect the financial stability and security of the assets involved in the matrimonial dispute.

The legal issues the court was required to decide primarily revolve around the enforcement of financial restraints to ensure the preservation of assets during ongoing matrimonial litigation. The Wife sought an order to prevent the Husband from increasing the mortgage on their property, altering the credit limits on various lines of credit, dissipating or transferring the assets of a company, and to require the Husband to notify her of any new employment. Additionally, the court had to consider the implications of the proceedings against the Husband in the Superior Court of Ontario on the Australian proceedings.

The court, in its reasoning, acknowledged the necessity to protect the Wife's financial interests during the pendency of the matrimonial litigation. It found that the Wife had made out a sufficient case for the imposition of the sought restraints on the Husband's financial actions. The court concluded that the Husband should be restrained from increasing the mortgage on the property, altering credit limits on specified lines of credit, and dissipating or transferring the assets of the specified company. Furthermore, the court ruled that the Husband must notify the Wife in writing of any new employment he secures, providing relevant details. These measures were deemed necessary to safeguard the Wife's interests and ensure fairness in the financial management of the assets in question.

Pending further orders of the court, the relief granted includes restraining the Husband from increasing the mortgage on the property, altering credit limits on specific lines of credit, dissipating or transferring the assets of a company, and requiring him to notify the Wife of any new employment. These orders aim to maintain the status quo and protect the Wife's financial interests during the ongoing matrimonial litigation.

Orders

Orders of the court

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The Husband and the Wife each be restrained from increasing the amount presently outstanding and secured by way of mortgage on the property at Property K.

The Husband be restrained from increasing the limit of any and all lines of credit secured on the assets of the companies known as [1], [2], [3] and/or The Saville Family Trust, and any line of credit in the name of the husband with [omitted].

The Husband be restrained from dissipating and/or transferring the assets of [1].

The Husband notify the Wife in writing upon his obtaining employment and provide relevant particulars thereof;

In relation to the proceedings instituted against the Husband in the Superior Court of Ontario:-

(a)

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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