Suvari & Suvari (No 2)
[2025] FedCFamC1F 223
•26 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Suvari & Suvari (No 2) [2025] FedCFamC1F 223
File number: SYC 544 of 2019 Judgment of: CHRISTIE J Date of judgment: 26 March 2025 Catchwords: FAMILY LAW - Case Management– Interim Property – Where wife seeks injunctions to operate on savings accounts of the husband – Where husband opposes this on the basis that he needs these savings to pay tax and other financial obligations – Injunction granted for a portion of the funds in Australian bank account – Held that husband is free to use the remainder of his savings to pay creditors on condition that he provide evidence of this to the wife. Legislation: Family Law Act 1975 (Cth) Cases cited: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 229 ALR 457
In the Marriage of Waugh (2000) FLC 93-052
Mullen & De Bry (2006) FLC 93-293
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319
Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729
Suvari &Suvari [2022] FedCFamC1F 377
Division: Division 1 First Instance Number of paragraphs: 45 Date of hearing: 26 March 2025 Place: Sydney Counsel for the Applicant: Ms Rebehy Solicitor for the Applicant: Mistryfallahi Lawyers & Business Advisors 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:
26 MARCH 2025
THE COURT ORDERS THAT:
1.Each party file and serve a Costs Notice in accordance with the Rules by 4pm on 27 March 2025, such notice to pay specific attention to the requirement to identify the source of funds used to meet legal fees.
2.The time provided for service of questions to the expert provided in the Rules be extended to 4pm 30 April 2025
3.Within 7 days:
a.The wife file and serve a Request for Answers to Specific Questions addressed to the husband;
b.The wife make written request of the husband for provision of specific documents by way of disclosure.
4.That within 7 days of receipt of the requests in order 3 the husband provide:
a.Answers to Request for Answers to Specific Questions;
b.Documents requested by the wife.
5.Within 14 days the wife nominate 3 suitable mediators and provide details of their availability and cost.
6.Within 7 days of the wife’s compliance with order 5 the husband select one of the three mediators.
7.The husband and wife have leave to issue more than 5 subpoenae.
8.The husband forthwith execute an authority to Mr Z, accountant, permitting the wife to request (in writing) documents concerning any of the assets the subject of the single expert report by Mr AA or in respect of the husband’s taxation affairs.
9.The husband is restrained from operating his ANZ bank account …31 except for the purpose of complying with these orders.
10.The husband transfer to a controlled monies account in the name of the husband and wife the sum of $250,000 by close of business 27 March 2025.
11.The parties are restrained from dealing with the monies placed in the controlled monies account except with consent in writing of both parties or court order.
12.If the husband applies personal funds to corporate debt he will notify the wife within 7 days of the date, amount and invoice paid.
13.The Application in a Proceeding filed on 19 February 2025 is otherwise dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym Suvari & Suvari has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
The wife filed an Application in a Proceeding seeking case management directions and injunctions. The husband’s Response seeks that the Application in a Proceeding be dismissed.
BACKGROUND
The parties separated in December 2018.
On 31 January 2019 an application for property adjustment was filed by the wife in this Court.
That property application has not progressed because of delay in obtaining expert evidence about the value of the assets of the parties or either of them.
The parties are unable to progress the matter because they do not agree as to the value of various assets.
The Joint Balance Sheet (exhibit 1) demonstrates the difficulties:
Ownership
Description
Applicant’s value
Respondent’s value
Assets
1
Jt
J Street, Suburb D
$1,200,000
$1,300,000
2
W
ANZ Bank Account …85
$1,930
$1,930
3
Jt
ANZ Bank Account …27
$-45.00
$-45
4
W
Motor Vehicle 1
$35,000
$35,000
5
H/W
B Pty Ltd t/as M Business
$awaiting valuation
00
6
H
Suvari Pty Ltd t/as C Pty Ltd
$awaiting valuation
00
7
H
BB Pty Ltd
$awaiting valuation
$27,417
8
H
CC Pty Ltd
$awaiting valuation
00
9
H
E Pty Ltd
$awaiting valuation
00
10
H
DD Pty Ltd
$awaiting valuation
00
11
H
T Pty Ltd
NK
00
12
H
ANZ Bank …31
NK
$227,000
13
H
EE Bank …17
$302,000
$264,000
14
H
Bitcoin
NK
$86,000
15
H
Gold
NK
00
16
H
Motor Vehicle 2
NK
$40,000
Total
$1,538,885 + NK
$679,417.00
Addbacks
17
H
Unaccounted / unexplained withdrawal of funds from businesses
$1,000,000
00
18
H
Suvari Pty Ltd loan to E Pty Ltd
$680,000
00
Total
$680,000
Liabilities
19
Jt
ANZ Mortgage …08
$99,670
Total
$99,670
Superannuation
Member
Name of Fund
Type of Interest
Applicant’s value
Respondent’s value
20
W
Superannuation Fund 1
Accumulation
$41,683
$41,683
21
H
Superannuation Fund 2
Accumulation
$70,455.49
$70,455
22
H
Superannuation Fund 3
Accumulation
$14,955.27
$14,995
23
H
Superannuation Fund 4
Accumulation
$25,081.45
$25,081.45
24
H
Superannuation Fund 5
Accumulation
$14,338.00
$14,338
25
H
Superannuation Fund 6
Accumulation
$68,167.85
$68,167
Total
$234,721.06
There would appear to be some mathematical errors in the above table (but it reflects the document which was before the Court).
On 29 February 2024 an order was made appointing Mr AA as single expert valuer to value:
(1)Suvari Pty Ltd;
(2)E Pty Ltd;
(3)B Pty Ltd;
(4)BB Pty Ltd; and
(5)CC Pty Ltd.
The order was expressed generally to also require valuation of any other entity in which the husband has an interest.
The report became available to one party just prior to the interim hearing. The parties agree that they have not had time to consider it in any detail but it would appear that the single expert has concluded that the various corporate entities have minimal value.
I have previously observed (Suvari &Suvari [2022] FedCFamC1F 377) when hearing this matter on an interim basis:
[4] The issues for determination are:
…
Has the wife identified a risk to the assets such that Federal Circuit and Family Court of Australia (Division 1) (“the Court”) should act protectively to ensure justice and equity can be achieved on final distribution?
How are issues of full and frank financial disclosure best addressed in this case?
Those issues remain live.
The wife became aware in early 2025 of the appointment of an administrator to:
(1)DD Pty Ltd;
(2)Suvari Pty Ltd and
(3)BB Pty Ltd.
The administrator is described as a restructuring practitioner.
I was told from the bar table that the administration has lapsed as creditors voted against the proposal. This leaves those entities in a precarious financial position on any view.
The wife says that it is necessary for the Court to grant an injunction restraining the husband from dealing with his savings.
The husband resists the making of the injunction on the basis that he wants to be free to use the funds in his personal bank accounts to pay tax and company expenses.
The husband confirmed, through his counsel, that he has not previously loaned any of the entities funds to pay company expenses.
The parties were able to agree to a series of case management directions which I propose to make.
Injunctions
Section 114 of the Family Law Act 1975 (Cth) (“the Act”) provides:
(1)In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
(a) an injunction for the personal protection of a party to the marriage;
(b)an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;
(c)an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;
(d) an injunction for the protection of the marital relationship;
(e) an injunction in relation to the property of a party to the marriage; or
(f)an injunction relating to the use or occupancy of the matrimonial home.
(2A)In a de facto financial cause (other than proceedings referred to in, or relating to, paragraph (e) or (f) of the definition of de facto financial cause in subsection 4(1)) the court may:
(a)make such order or grant such injunction as it considers proper with respect to the use or occupancy of a specified residence of the parties to the de facto relationship or either of them; and
(b)if it makes an order or grants an injunction under paragraph (a)—make such order or grant such injunction as it considers proper with respect to restraining a party to the de facto relationship from entering or remaining in:
(i) that residence; or
(ii) a specified area in which that residence is situated; and
(c)make such order or grant such injunction as it considers proper with respect to the property of the parties to the de facto relationship or either of them.
Sections 90SB and 90SK apply in relation to an order or injunction under this subsection in a corresponding way to the way in which those sections apply in relation to an order under section 90SM.
Note 1: This subsection does not apply to proceedings referred to in paragraph (g) of the definition of de facto financial cause that relate to proceedings referred to in paragraph (e) or (f) of that definition.
Note 2: The same requirements in sections 90SB (length of relationship etc.) and 90SK (geographical requirements) for section 90SM orders must be satisfied for orders and injunctions under this subsection.
(3)A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.
(4)If a party to a marriage is a bankrupt, a court may, on the application of the other party to the marriage, by interlocutory order, grant an injunction under subsection (3) restraining the bankruptcy trustee from declaring and distributing dividends amongst the bankrupt’s creditors.
(5)Subsection (4) does not limit subsection (3).
(6)If a party to a marriage is a debtor subject to a personal insolvency agreement, a court may, on the application of the other party to the marriage, by interlocutory order, grant an injunction under subsection (3) restraining the trustee of the agreement from disposing of (whether by sale, gift or otherwise) property subject to the agreement.
(7) Subsection (6) does not limit subsection (3).
The case law has focused on the matters which guide the exercise of the discretion.
In essence it is for the wife to establish:
(1)that she has a prima facie case, and
(2)where the balance of convenience lies.
(See Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 229 ALR 457)
The authorities have focused on whether (absent injunction) there is a risk that the Court will not be able to do justice as between the parties.
The wife seeks to retain the property in which she lives. She otherwise seeks an adjustment of assets such that she receives 60% of the pool.
In Waugh (2000) the Full Court said:
46.Whilst his Honour certainly seems to have considered issues of balance of convenience and hardship between the parties, it seems to us, with respect, that he did not give consideration to the fundamental question whether there was any evidence of any intention by the husband to dispose of any assets pursuant to any scheme to defeat any judgment which the wife might obtain in the substantive proceedings, or whether he merely wished to continue to trade, as he always had done, prior to and since the separation of the parties.
(emphasis added)
(In the Marriage of Waugh (2000) FLC 93-052 at 87,810)
The elevation of this passage to the status of principle has not survived subsequent Full Court analysis which has focused on finding whether there is a risk that assets will be dissipated such as to undermine the process and the relief sought(e.g. Mullen & De Bry (2006) FLC 93-293), as opposed to the pursuit of a scheme.
The family law jurisprudence draws on other civil law authorities concerning the making of interim injunctions.
In Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319, Gleeson CJ said after discussing the discretionary nature of the remedy at 321–325:
… as a general rule a plaintiff will need to establish, first, a prima facie cause of action against the defendant, and secondly, a danger that, by reason of the defendant’s absconding, or of assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with in some fashion, the plaintiff, if he succeeds, will not be able to have his judgment satisfied.
...
It is not difficult to imagine situations in which justice and equity would require the granting of an injunction to prevent dissipation of assets pending the hearing of an action even though the risk of such dissipation may be assessed as being somewhat less probable than not.
But it is also appropriate to observe that it is not the role of the judge determining the question of the injunction to, in effect conduct a trial of the disputed evidence to resolve those disputes (see Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729).
Which is a good thing in this case because it would not be possible on the basis of the presently filed evidence.
The husband resists the making of the injunction on the basis that he says:
(a)The funds sought to be injuncted have been acquired post separation;
(b)The funds are required to meet debts (personal and company), including tax, and
(c)The wife has not established that her claim would be defeated by use of these funds.
The wife says it is agreed that the value of the corporate interests of the husband (according to the valuation evidence) has decreased rather than increased. The husband has only recently made disclosure of significant taxation debts and penalties which started to accrue years ago and the husband proposes being permitted to inject further funds into entities which are (given the rejection of the proposal of the administrator) in serious financial difficulties.
As to the husband’s submission about after acquired funds I cannot consider non-financial contributions in a vacuum. Funds in his bank accounts may have accumulated after separation but during that period the wife has been making significant non-financial contributions to the parties’ children.
I accept that the husband tells the Court he wants to be able to apply funds to debt. I would be comfortable with that submission if the evidence established with precision – which specific debts the husband proposed to pay on what days and what arrangement would be in place for the return of the funds to the husband by the entity to whom they were loaned.
I also take into account the fact that the husband agreed that he had not previously loaned any personal funds to any entity. Accordingly, his request to be permitted to do so now is not in the ordinary course of business.
As to the suggestion that the wife has not established a risk to the relief sought I accept that this submission is open. If the wife were to receive sixty per cent of the known assets then her entitlements on the pool as presently understood may exceed the equity in the Suburb K property but when one has regard to her superannuation and car then her claim may be capable of being satisfied.
However, as she has consistently argued, the husband has failed to provide promptly financial documents in this matter such that it is difficulty to evaluate the accuracy of the values for which he contends.
In addition, the husband’s submissions require that I dismiss the possibility that the wife will be successful in her claim for addbacks and that the questions to the expert do not have the effect of increasing the value attributed to the husband’s corporate interests.
I accept that on its face the injection of the husband’s own funds into entities which are in a precarious financial position may very well see those funds lost to the parties. I accept that from the husband’s perspective he says those funds are required to ensure the continuation of the entities.
However, if the entities are objectively of nominal value the injection of funds does not appear commercially sound.
I have been given no specific information about where the funds would be directed and on what terms. That persuades me I should make an order pending further order. The husband can apply to vary its terms if he has evidence. This strikes a balance between the interests of both parties pending further order.
I do not propose to make an injunction in respect of the whole of the husband’s funds. I do propose that he be restrained from use of $250,000. His Financial Statement says he has sufficient income each week to meet his expenses (in fact there is a small surplus).
Consistent with that finding I will make orders to require the husband to place those funds in a controlled monies account.
If the husband wishes to use the remainder of his funds to pay creditors then he can do so – but he must provide the wife with evidence by way of disclosure of each creditor paid with personal funds, including the date, amount and invoice.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 7 April 2025
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