Suvari &Suvari

Case [2022] FedCFamC1F 377


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Suvari &Suvari [2022] FedCFamC1F 377

File number(s): SYC 544 of 2019
Judgment of: CHRISTIE J
Date of judgment: 30 May 2022
Catchwords: FAMILY LAW – INTERIM PROPERTY – where the wife seeks an injunction – where the wife alleges the husband has spent monies belonging to a company – where it is asserted that full and frank disclosure has not been given.
Legislation:

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 7.26.

Family Law Act 1975 (Cth) ss 79, 114(1).

Cases cited:

Kartal & Templeman [2022] FedCFamC1A 46

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466.

Waugh & Waugh (2000) FLC 93-052.

Division: Division 1 First Instance
Number of paragraphs: 61
Date of hearing: 13 May 2022
Place: Sydney
Counsel for the Applicant: Ms McMahon
Solicitor for the Applicant: Newnhams Solicitors
Counsel for the Respondent: Mr Watkins
Solicitor for the Respondent: MCK Lawyers

ORDERS

SYC 544 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS SUVARI

Applicant

AND:

MR SUVARI

Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

30 MAY 2022

THE COURT ORDERS, AND UNTIL FURTHER ORDER, THAT:

1.Mr Suvari (“the husband”) provide to the solicitors for Ms Suvari (“the wife”) monthly reports as to the income and expenditure relating to Suvari Pty Ltd as trustee of the Suvari Family Trust.

2.Within 14 days of the date of these orders the husband transfer to Suvari Pty Ltd as trustee of the Suvari Family Trust, the shares held by T Pty Ltd in E Pty Ltd.

3.Pursuant to r 7.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the time for asking questions of the single expert valuer, Mr F is extended.

4.The husband be restrained from dealing with the assets or income of the Suvari Family Trust except:

(a)In the ordinary course of business; or

(b)With the written consent of the wife.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (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 Suvari & Suvari has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

CHRISTIE J:

  1. This is an application for interim property orders.

  2. Ms Suvari (“the wife”) filed an Application in a Proceeding on 26 April 2022. That application seeks a partial…

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Suvari &Suvari [2022] FedCFamC1F 377
Case
[2022] FedCFamC1F 377
Decision Date

CaseChat Overview and Summary

The case of Suvari & Suvari was heard in the Family Court of Australia, dealing with the financial disputes between the husband and wife following their separation. The primary issues were the allocation of assets, the issuance of injunctions to prevent the husband from disposing of certain assets, and the requirement for the husband to provide regular financial reports regarding the Suvari Family Trust. The husband consented to providing monthly reports for the Suvari Family Trust, and the court subsequently made that order.

The legal issues revolved around whether an interim property order should be made, whether injunctions should be issued to restrain the husband from dealing with specific assets outside the ordinary course of business, and whether the husband should be required to provide regular reports regarding the Suvari Family Trust. The court considered the principles of interim property adjustment under section 79 of the Family Law Act, which allow for interim property orders if they are just and equitable, do not prejudice another party's relief, and there are sufficient assets available to satisfy the order.

The court found that an interim property order should be made, considering the husband's significant income and the substantial assets held by the parties. The court also determined that injunctions should be issued to prevent the husband from dealing with certain assets outside the ordinary course of business, as there was a risk of asset dissipation that could undermine the court's ability to achieve a fair and equitable outcome. The husband had not fully disclosed his financial situation, which led to concerns about the adequacy of his financial disclosures. The court ordered the husband to transfer shares in E Pty Ltd to Suvari Pty Ltd and required him to provide regular financial reports regarding the Suvari Family Trust.

Orders

Orders of the court

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Background

Background to the litigation

The material relied upon by the husband at the interim hearing was identified as:(a)An outline of case document filed 12 May 2022;(b)A Response to an Initiating Application filed 29 March 2019;(c)A Response to an Application in a Proceeding filed 3 May 2022;(d)An affidavit filed 3 May 2022;(e)A financial statement filed 3 May 2022; (f)A further affidavit filed with leave on 12 May 2022 (which included updated financial information); and(g)A document entitled “Disclosure in relation to G Business and H Business”.BACKGROUND The husband was born in 1971. The wife was born in 1974. The husband and the wife (“the parties”) married in 2000 and separated in August 2018. There are two children of the marriage: X (born in 2005) and Y (born in 2007) (“the children”). The assets of the parties (based on the evidence available at the date of hearing) appear to be as follows: According to the parties’ financial statements, the wife has an estimated average weekly income of $800 and the husband has an estimated average weekly income of $11,000.THE LAW: INTERIM PROPERTY ADJUSTMENT It is well established that as a general rule, parties to family law proceedings are best served by one exercise of the power in s 79 of the Act: Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 (“Strahan”) and see also Kartal & Templeman [2022] FedCFamC1A 46. In an appropriate case it is recognised that one or both of the parties may seek an order under s 79 of the Act at an interlocutory stage of the proceedings. A party does not have to demonstrate special circumstances in order to seek an interim order. However, it is necessary to demonstrate that: (a)Such an order would be just and equitable;(b)Such an order would not prejudice the relief of another party; and(c)There are assets available to satisfy the order. The Court is not required to undertake a detailed analysis of the matter but should understand (on the basis of the evidence) the contentions each party makes about issues relating to contributions and their respective future financial needs. The Court has the power to issue an injunction. The power derives from s 114(1) of the Act: “…the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate”. An injunction will issue where there is evidence to support the submission that, absent an injunction, there is a risk to the assets such as may undermine the Court’s capacity to do justice and equity as between the parties: Waugh & Waugh (2000) FLC 93-052.CONSIDERATION The issues which require determination are:(a)Should an interim property order be made?(b)Should injunctions issue restraining the husband from dealing with assets other than in the ordinary course of business?(c)Should the husband provide regular reports to the wife in respect of the Suvari Family Trust? The husband consented to providing monthly reports for the Suvari Family Trust and I will make that order.Interim property order

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

An injunction will issue where there is evidence to support the submission that, absent an injunction, there is a risk to the assets such as may undermine the Court’s capacity to do justice and equity as between the parties: Waugh & Waugh (2000) FLC 93-052.CONSIDERATION The issues which require determination are:(a)Should an interim property order be made?(b)Should injunctions issue restraining the husband from dealing with assets other than in the ordinary course of business?(c)Should the husband provide regular reports to the wife in respect of the Suvari Family Trust? The husband consented to providing monthly reports for the Suvari Family Trust and I will make that order.Interim property order The wife seeks an order for payment of funds to her equivalent to all amounts advanced by Suvari Pty Ltd to E Pty Ltd. In the alternative, she seeks an order for payment of funds to her, equivalent to half of all amounts advanced by Suvari Pty Ltd to E Pty Ltd. In the alternative to that, she seeks an order for the husband to transfer shares in E Pty Ltd (held by him through T Pty Ltd) to Suvari Pty Ltd. The husband consents to the share transfer. The balance sheet is not settled. Adopting a conservative approach the net assets of the parties would appear to be at least $2,626,965. This figure does not take into account the fact that Suvari Pty Ltd is owed $905,000 by E Pty Ltd. It also attributes no value to any of the other businesses established by the husband after separation. The parties have operated businesses together. They previously operated a business called M Business. The entity Suvari Pty Ltd operates N Business. The husband is about to operate two further businesses: G Business and H Business. The husband would appear to have other business interests in Country O, including perhaps a business called M Business. The wife raises a concern that the husband has not complied with his duty to make full and frank financial disclosure in respect of assets (and perhaps income). On the husband’s own material, the concern the wife raises about disclosure appears to be made out. On 5 April 2022 the husband’s lawyers wrote to the lawyers acting for the wife answering specific questions about the financial aspect of the proceedings, which had been raised in a letter dated 18 March 2022. In that letter the husband said by way of explanation of the transfers from the account of Suvari Pty Ltd to E Pty Ltd:[t]he funds transferred were profits from 2020 which our client was entitled to 50% of and [Mr P] was entitled to the remaining 50%. Our client and [Mr P] each decided to invest their share of the profits into [E Pty Ltd]. Not surprisingly, in a letter dated 12 April 2022, the wife’s solicitors questioned why the husband would be transferring monies from Suvari Pty Ltd to E Pty Ltd, a company in which he did not have an interest. The letter from the husband’s lawyers to the wife’s lawyers dated 22 April 2022 clarified the position and confirmed that the monies paid by Suvari Pty Ltd to E Pty Ltd were paid by way of loan from one entity to the other and were repayable and paid pursuant to a loan agreement. The letter enclosed an unsigned loan agreement dated 17 August 2021 which referred to N Business lending E Pty Ltd $150,000.