HUSBAND DISBURSED THE PROCEEDS OF THE SALE OF THE FORMER MATRIMONIAL HOME WITHOUT THE WIFE’S CONSENT
Padanowska & Padanowski (No.3) [2020] FCCA 3451 (23 December 2020)
The applicant seeks injunctive relief regarding the proceeds of the sale of the former matrimonial home. The husband disbursed, without the applicant’s consent or knowledge, approximately 83% of the proceeds of sale of the former matrimonial home.
Facts:
The present application arises out of circumstances where the first respondent sold the parties’ former matrimonial home and disbursed the proceeds of sale in the face of competing interim applications as to how those funds should be disbursed, in a manner which was not communicated to the applicant until after proceeds had been disbursed, and without her consent.
Part of the moneys were used towards legal costs owed to the first respondent’s lawyers (the second and third respondents herein). Part of the proceeds were used to pay back alleged loans to the respondent’s brother and father (the fourth and fifth respondents herein), which was money said to have been lent for the purposes of funding the family law proceedings, including for the provision of experts’ reports, and associated criminal law proceedings. The first respondent received $201,915.32 from the proceeds of sale and as at the time of this application only $35,000 remained, the rest having been disbursed.
The applicant seeks a freezing order in respect of funds paid by the first respondent to his lawyers, his brother and his father and thereafter an order that such funds be placed into a controlled moneys account pending further order.
Issue: Should the injunction be granted and the funds be placed into a controlled moneys account pending further order?
Law:
- Family Law Act 1975 S.79, 106B, 114
Analysis:
In circumstances where the first respondent has already disposed of what appears to be a significant portion of the non-superannuation pool of assets, and where he has done so without the consent or knowledge of the applicant, in the face of outstanding interim applications, the Court has little difficulty in exercising its discretion in a manner which will ensure that the applicant will not ultimately be denied the fruits of any litigation.
While the orders sought by the applicant might affect the interests of the second, third, fourth and fifth respondents, at present there is no evidence as to how they may be prejudiced if the asset preservation order is made. The relief sought is interlocutory in any event.
Conclusion: Court orders that the third, second and fourth respondent be restrained by injunction from transferring, dispensing or otherwise dealing with the sum received by them from the first respondent and shall transfer the amount received to the trust account of the solicitors of the applicant.