Munayallan & Scott (No 5)
[2021] FedCFamC1F 284
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Munayallan & Scott (No 5) [2021] FedCFamC1F 284
File number(s): SYC 59 of 2010 Judgment of: HENDERSON J Date of judgment: 21 December 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Wife sought a vexatious proceeding order under
section 102QB of the Family Law Act, that the husband be prohibited from filing any further applications without leave of the Court – Application grantedFAMILY LAW – INTERIM PROPERTY SETTLEMENT – Matter to be re-listed upon application of the wife to finalise property proceedings after Supreme Court proceedings are concluded and matrimonial pool for division crystallised.
FAMILY LAW – PROPERTY – SPOUSE MAINTENANCE – Wife sought a lump sum spouse maintenance order – Order made.
FAMILY LAW – PARENTING – PRACTICE AND PROCEDURE – Application by the respondent to reopen final parenting matter – application dismissed – all outstanding interim applications filed by the husband dismissed
Legislation: Family Law Act 1975 (Cth) ss 72, 102QB(1), 102QB(2), 102QD, 102QE(2), 102QG.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021(Cth) r 12.13, 13.03
Cases cited: Ascot Investments Pty Ltd v Harper (1981) 148 CLR 334; (1981) FLC 91-000
Ashton & Ashton (1986) FLC 91-777
Cannon v Acres [2014] FamCA 104
Ferraro v Ferraro (1993) FLC 92-335; (1992) 16 Fam LR 1
Harris v Harris [2012] FamCA 987
King v Finneran (2001) FLC 93-079 [2001]; FamCA 344
Munayallan & Scott [2019] FamCA 549
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Pencious v Searle [2017] FLC 93-805
Phong v P Pty Ltd (No 2)
Pierce v Pierce (1998) FLC 92-844; [1998] FamCA 74
Potier v Attorney General in and for the State of New South Wales [2015] 89 NSWLR 284; NSWCA 129
Re Attorney-General; Ex Parte Skyring (1996) [1996] HCA 4; 135 ALR 29
Rice and Asplund (1979) FLC 90-725;[1978] FamCA 84 1
Stein v Stein (2000) 155 FLR 81; (2000) FLC 93-004
Division: Division 1 First Instance Number of paragraphs: 243 Date of last submission/s: 13 October 2021 Date of hearing: 12 -13 October 2021 Place: Sydney Counsel for the Applicant: Mr Duc Solicitor for the Applicant: Mills Oakley Solicitor for the Respondent: No appearance. Self-represented Litigant ORDERS
SYC 59 of 2010 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MUNAYALLAN
Applicant
AND: MR SCOTT
Respondent
ORDER MADE BY:
HENDERSON J
DATE OF ORDER:
21 DECEMBER 2021
THE COURT ORDERS THAT:
Vexatious Proceedings Order
1.Pursuant to s 102QE of the Family Law Act1975 (Cth) (“the Act”) a vexatious proceedings order be made against the husband, Mr Scott, born … 1970, and he is prohibited from instituting proceedings under the Act against or in relation to the wife, Ms Munayallan born … 1973 or the children, D, born … 2010; and C, born … 2007, without first having been granted leave to commence that proceeding pursuant to section 102QG of the Act.
(a)This vexatious proceeding order does not apply to:
(i)Any cost application of the husband arising from these Orders and filed within the time prescribed under the Family Law Act 1975 (Cth) and r 12.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)(”the current Rules”).
(ii)Any appeal from these Orders provided such appeal is filed within the time prescribed under r 13.03 of the current Rules or such other time as is permitted by order of the Full Court;
(iii)An application made by the husband to be provided with a copy of the transcript of proceedings heard before Justice Henderson; and
(iv)The filing of a response or affidavit in reply by the husband.
(b)IT IS NOTED the particular consequences arising from a vexatious proceedings order are set out in s 102QD of the Act, which provides:-
(i)If a person is subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act:
A.that person must not institute proceedings, or proceedings of that type, in the court without the leave of the court under section 102QG; and
B.another person must not, acting in concert with the person, institute proceedings, or proceedings of that type, in the court without the leave of the court under section 102QG.
(ii)If proceedings are instituted in contravention of subsection (1), the proceedings are stayed.
(iii)Without limiting subsection (2), the court may make:
A.an order declaring proceedings are proceedings to which subsection (2) applies; and
B.any other order in relation to the stayed proceedings it considers appropriate, including an order for costs.
(iv)The court may make an order under subsection (3) on its own initiative or on the application of any of the following:
A.the Attorney-General of the Commonwealth or of a State or Territory;
B.the appropriate court official;
C.a person against whom another person has instituted or conducted vexatious proceedings;
D.a person who has a sufficient interest in the matter.
(v)IT IS NOTED
that if the husband or any other person acting in concert with him wishes to apply for leave to institute a proceeding or proceedings covered by this vexatious proceedings order, the husband or such other person will be obliged to comply with s 102QE of the Act which provides:-
Section 102QE(1) This section applies to a person (the applicant) who is:A.subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or
B.acting in concert with another person who is subject to an order mentioned in paragraph (a).
Section 102QE(2) The applicant may apply to the court for leave to institute proceedings that are subject to the order.
Section 102QE(3) The applicant must file an affidavit with the application that:
C.lists all the occasions on which the applicant has applied for leave under this section; and
D.lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
E.discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
Section 102QE(4) The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.
Parenting
2.All outstanding applications filed by the husband seeking a variation of parenting orders or a re-opening of the parenting proceedings are dismissed.
3.Order 3 of the final parenting orders made by Berman J on 15 August 2018 is varied as follows:
(a)That the children shall spend time with the husband as follows:-
(i)From the conclusion of school Friday, or 3pm if not on a school day, until 5pm Sunday
(b)During the school holiday period on a week about basis commencing from the last Friday of the school term at 3pm to the following Sunday at 5pm and thereafter each alternate week from 5pm Sunday to the following Sunday until the recommencement of the school term or;
(c)At such other times as agreed between the parties.
Spousal Maintenance
4.The husband pay to the wife lump sum spouse maintenance in the sum of $100,000 being a payment of $10,000 for ten years forthwith.
5.Upon the husband complying with this order the order made of 6 October 2021 that he pay the wife the sum of $100,000 by way of interim property distribution is discharged.
Interim Property
6.That following the conclusion of Supreme Court proceedings the wife is given leave to apply to the Court to finalise property proceedings.
Costs
7.That the husband pay the wife’s costs as ordered in the sum of $62,275.50 forthwith.
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 Munayallan & Scott has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
This is an application by the wife, Ms Munayallan (“the wife”), born in 1973, for property and parenting orders. In relation to parenting orders, the wife seeks that the interim orders made by the learned senior registrar on 30 March 2021 continue as final orders.
The respondent husband is Mr Scott (“the husband”), born in 1970. The parties have two children together; D, born in 2010; and C, born in 2007.
The parenting orders made on 30 March 2021 were that the children spend alternate weekends with their father from Friday night to the Sunday night and time in the school holidays on a week about basis.
Mr Duc of Counsel represented the wife, and the husband was self-represented.
The husband sought to reopen the parenting proceedings determined to finality by Justice Berman on 15 August 2019 and that the children live with him. His Honour’s orders had been varied by an interim decision of, as he then was, Senior Registrar Campbell in March 2021, due to the conduct of the husband in retaining one of the children.
In relation to the property proceedings, the husband sought I adjourn the final hearing to await the outcome of Supreme Court proceedings which involve what this Court regards as matrimonial property, namely proceeds of sale of the former matrimonial home at J Street, Suburb E (“the Suburb E property”). In any event, the husband also asserts that the money held by the Supreme Court is owed to his mother and I Pty Ltd (“I Pty Ltd”) and thus there is no matrimonial property for division.
The husband initially indicated in January 2021 when the matter was listed for trial he wanted Berman J’s orders of four nights a fortnight with their father to be reinstated being, from the conclusion of school Thursday to the commencement of school Monday, and one half school holidays. The husband later indicated and during the tortured course of having this matter prepared for trial, that the parenting proceedings be reopened and that the children live with him primarily and spend limited time with their mother. The husband did not attend at the final hearing.
Additionally the wife sought orders that the husband be subject to a vexatious proceedings order, a child support departure order and an order for spouse maintenance.
At the conclusion of the trial, the wife abandoned the child support departure application and asked that I vary an order I had made on 29 September 2021 that the husband pay to her by way of an interim property adjustment the sum of $100,000 be paid by way of a lump sum spouse maintenance order being $10,000 a year for 10 years.
PROCEDURAL HISTORY OF THE FINAL HEARING
The hearing was listed to commence Monday, 27 September 2021. The proceedings did not commence to be heard at all during that week, initially due to the husband’s assertions of ill-health and, secondly, due to his failure to engage in the proceedings in any meaningful way during that week.
On 27 September 2021, the Court, and Mr Duc, attempted to contact the husband but could not get through to him. Two groundless reviews were dealt with in his absence. The reviews were in relation to a senior judicial registrar’s orders concerning the service of subpoenas on individuals to give evidence and produce documents at the hearing and subpoenaing of records at various banks which held accounts in the name of companies the wife asserted were the alter-ego of the husband. I dismissed the reviews.
On Tuesday, 28 September 2021 the Court contacted the husband by telephone. When asked about the reason for his absence the day before, the husband said he had attended EE Hospital on Sunday night, that he had a “mild heart attack”, that there were enzymes in his blood indicative of a mild heart attack, that he was to have an angiogram and was to make further appointments with his GP or other medical practitioner, and that he had an adverse reaction to the COVID-19 inoculation he had on Saturday.
On the basis of these somewhat alarming facts I granted leave to the legal representatives for the wife to issue subpoenas to the LL Medical Centre and EE Hospital, and made orders that those institutions were to provide to the solicitors for the wife all information concerning the medical condition of Mr Scott. I further directed that Dr FF and the husband’s general practitioner, Dr PP at BB Medical Centre, be available to provide evidence in relation to his current medical condition via Microsoft Teams.
The matter was adjourned to Wednesday, 29 September 2021 for the wife's representatives to provide the information they were obtaining to the Court. On this date the husband could not be contacted via telephone or email despite numerous attempts by the Court to do so and I proceeded to hear evidence from his GP and receive the EE Hospital records and LL Medical Centre notes into evidence.
On the basis of concerning information heard by the Court that the husband had simply not told the truth on Tuesday 28 September 2021, I made a suite of orders on the 29 September 2021 in relation to joining companies and other persons to the litigation who were, on the wife's evidence, involved in concealing from the wife, and the Court the true extent of the husband's wealth, and made various injunctions against those parties and companies from disposing of the assets that the wife had been able to ascertain were in their possession or control. Included in those orders were Mr M and Ms HH, who had been subpoenaed to attend Court in person to give evidence on Wednesday, 29 September 2021, and who had each failed to attend.
I stood the matter over to Thursday, 30 September 2021 to entertain the wife's application for an interim costs order and an indemnity costs order for the costs thrown away by the antics of the prior three days and the days leading up to the preparation of the final hearing. The husband appeared on this occasion and I heard the wife’s application.
On Friday 1 October I heard and determined the husband’s urgent oral application to discharge injunctions erroneously placed on his personal accounts with the Commonwealth Bank and I made orders in his favour.
At that time I stood the matter over to Tuesday, 5 October, to hear the husband’s oral applications contained in emails that I disqualify myself and adjourn the hearing which I had indicated could continue Monday, 11 October until after the Supreme Court proceedings were finalised. The husband consented to this course. I indicated I would deliver judgement prior to 7 October 2021 when the final hearing was to resume.
At 11.59PM on Monday 4 October 2021 the husband sent an email to the Court requesting an adjournment of the Tuesday afternoon listing, telling the Court he could not attend as he had another Court appearance. I refused the adjournment.
On 5 October the husband did not attend court, despite the Court’s best efforts to engage him.
On 6 October 2021, I granted the wife’s application for her cost to be paid on an indemnity basis in the sum of $49,820.50 for the hearing that could not commence. I granted the wife’s application for the sum of $100,000 to be paid by way of interim property distribution within 14 days. I ordered the husband to pay the wife the sum of $12,455 being the total of the unpaid cost orders made against the husband in favour of the wife.
The matter came on for hearing on 7 October. I delivered judgement in respect of the husband’s applications that I disqualify myself and adjourn the hearing. I refused both applications.
The matter had been stood over to commence Thursday, 7 October, when two witnesses, who had been subpoenaed by the wife to give evidence, Ms HH and Mr M, were to attend court to give evidence. They failed to appear.
The husband engaged in the proceedings on 7 October and after dismissing his applications, I confirmed the listing of the matter for final hearing to commence on Monday, 11 October.
The matter came back before the court on 8 October in relation to the husband’s failure to comply with an order for substituted service to serve subpoenas via email on parties whose addresses had been unable to be ascertained by the wife and with whom the husband had a connection, being various company directors, or persons who had been company directors, and his mother.
The husband informed the Court, after being cross-examined by Mr Duc on 8 October 2021 that he could not commence the hearing on 11 October 2021 because he had a matter in Suburb NN Local Court. He had not disclosed that event on any occasion he had appeared, in the week of 27 September 2021 being 27 September, 28 September, 29 September, 30 September, 1 October, or on 7 October 2021. He behaved in this same fashion before Justice Berman in 2019.
The husband ultimately informed the Court on 8 October 2021 that he would not participate in the final hearing and that he was filing appeals against all of the decisions I had made in the weeks of 27 September and 5 October telling me, “I object to your judgment. I’ll be making the appropriate applications associated with that, your Honour. That is it”, (Transcript 8 October p.4 line 41-42), and that he would not attend for the hearing to commence on 12 October.
I stood over the commencement date of the final hearing to 12 October given the husband’s startling news to the Court on 8 October that he had a matter at Suburb NN Local Court on Monday, 11 October. The husband told the Court that he “overlooked” telling the Court that he had a matter to commence at the Suburb NN Local Court on 11 October when he appeared before me on 7 October.
In answer to his failure to serve, by way of email, subpoenas to Mr M, Ms HH, his mother and his brother, and then provide a copy of the email he had sent to those persons confirming he had served them with a copy of the subpoena as ordered he said, “I am not a public server. I have repeated that I am not a public server…” (Transcript 8 October p.6 line 35).
He had told the Court in the week of 27 September that he would forward the addresses and contact details requested by the wife to her lawyers. He replied on 8 October 2021 when questioned on this:
That’s what I did (Transcript 8 October, p. 6 line 21)
…
So, I provided the address and contact details – I’m not repeating myself. I said I provided the address and contact details (Transcript 8 October p.7 line 1-2)
…
I am not saying I refuse to do it, but it’s not my job. (Transcript 8 October p.7 line 13-14)
The husband repeated:
I repeat my email yesterday, your Honour. I repeat - I object to your orders you made today or your judgment today and I will be taking appropriate course of action associated with that (Transcript 8 October p.7 line 20-23).
And:
I said I object, and I will not be participating in the hearing until the matter is dealt with [in the] appeals court. That’s my clear direction. (Transcript 8 October p.8 line 40-41).
(As per original)
Question:
So, Mr Scott, you won’t be participating in the hearing commencing Tuesday? Is that what you have told me?---Until the matter is dealt with in the Appeals Court.
Okay. You won’t participate, Mr Scott. Thank you for the information. That’s your course to take as you see fit. (Transcript 8 October p.8 line 43 to p.9 line 2).
The hearing did commence on Tuesday, 12 October and, true to his word, the husband did not attend or participate on any of the two days that the hearing ran for. I heard the matter in his absence, having read and analysed the material he had filed for the final hearing which was initially to commence on Monday, 27 September.
The material I read was as follows:
For Mr Scott:
(a)The husband’s affidavit filed 24 September 2021, with the attendant annexures thereto;
(b)Response filed 28 August 2020;
(c)Affidavit of The husband’s sworn on 6 August 2021, including annexures;
(d)Financial statement of 9 March 2021.
For the wife:
(a)Further amended initiating application filed 25 March 2021;
(b)Affidavit sworn on 17 August 2021;
(c)Application in a Case filed 20 March 2020 seeking a vexatious proceedings order against the husband;
(d)Annexures attached to her trial affidavit including exhibit 1-25.
(e)Financial statement filed 25 March 2021;
(f)Two tender bundles; one tender bundle for substantive proceedings; one for vexatious litigant proceedings
(g)Counsel’s case outline and written submissions in relation to the wife’s applications.
(h)Wife’s Exhibits 1 through to 26
(i)Medical documents from LL Medical Centre regarding Mr Scott
(ii)Medical records from EE Hospital regarding Mr Scott
(iii)Documents emailed from the solicitor for the wife in relation to personal service of subpoena and notification of adjourned dates and court listings
(iv)Tab 11 of wife’s court book PAGE 207
(v)KK Business document signed by Ms Scott, page 214 of wife’s court book date stamped June 2013
(vi)Letter from Phong Lawyers to solicitors for the wife outlining the amounts of money that are held in the Supreme Court of NSW – PAGE 216 of wife’s court book
(vii)Decision of Berman J dated June 2019 - page 220 of wife’s court book
(viii)Decision of the Supreme Court of NSW dated 26 April 2018 – page 235 of wife’s court book
(ix)Decision and orders of Justice Aldridge dated 23 July 2021 page 246 of wife’s court book
(x)Subpoena to TT Bank issued by the wife – page 252 of wife’s court book
(xi)Orders of Senior Registrar Campbell dated 30 March 2021 page 267 of wife’s court book
(xii)Summary of orders made appearing at page 262 of the wife’ court book
(xiii)Pages 287-293 of the wife’s court book outlining a list of applications filed by the husband on the court portal.
(xiv)Page 294 of the wife’s court book – judgment relating to vexatious litigants
(xv)Documents produced under subpoena by CBA
(xvi)Documents produced under subpoena by TT Bank
(xvii)Balance sheet provided by the wife
(xviii)ASIC records and change of company details
(xix)Emails from Ms HH in relation to various banking institutions which allow the husband to access funds in those accounts
(xx)Bundle of documents and emails from the wife’s instructors to Ms HH with the latest being 11 October 2021 and the earliest 24 September 2021 including affidavit of service
(xxi)Bundle of documents and emails from the wife’s instructors to Mr M at … commencing 22 September 2021 and ending 11 October 2021 including affidavit of service
(xxii)Text message received by the wife from the husband dated 9 January 2021
(xxiii)ASIC search for CC Pty Ltd
(xxiv)Email received by the wife’s solicitors from the husband attaching a series of emails sent by the husband
(xxv)Parenting and property submissions of Mr Duc of behalf of the wife
(xxvi)Vexatious litigant submissions of Mr Duc on behalf of the wife
(xxvii)Judgment of Slattery J.
I will be able to determine to finality the application by the husband to reopen the parenting matter, and the wife’s application for the husband to be declared a vexatious litigant and claim for spouse maintenance.
I cannot finalise the property proceedings by way of delivering final orders as to entitlement as there are still ongoing Supreme Court proceedings to be finalised in December 2021 which will assist in crystallising the matrimonial pool.
The wife has identified property not subject to the Supreme Court proceedings which she asserts is part of the matrimonial pool being a property at F Street, Suburb MM (“the Suburb MM property”) owned by the JJ Trust and moneys in various company accounts. There is also the fact that the husband caused $1.3 million to be removed from the DD Pty Ltd CBA bank account in June 2021. The whereabouts of this money is unknown to the wife but she suspects it has been deposited into Ms Scott’s personal account at the behest of the husband.
I cannot with certainty determine what of the $1.9 million currently being held by the Supreme Court will be available for distribution as there are still outstanding matters to be dealt with in that Court, namely, the costs application by Mr Phong (“Mr Phong”) who was successful in proceedings against the husband and I Pty Ltd to have a contract completed for the purchase of the former matrimonial home at Suburb E. Those costs amount to something in excess of $400,000.
There is an outstanding application by Ms Scott and I Pty Ltd seeking the sum of $1.9 million from the husband for moneys they assert they lent to him to purchase the Suburb E property, the subject of the Supreme Court proceedings between Mr Phong, the husband and I Pty Ltd.
I can determine matters of contribution, need and whether, as the wife asserts, the various companies that will be named in this judgment are the alter ego of Mr Scott, and that their assets form part of the matrimonial pool. I cannot determine the entitlement of each to their property as I find it to be, given I cannot crystallise the matrimonial pool.
This issue is one of the basis of the husband seeking on multiple occasions that I adjourn the family law proceedings, adjournments which I have refused. I told the husband on multiple occasions that the course I proposed to adopt was as proposed by the wife, namely to hear and test the evidence and determine what is constituted in the matrimonial pool, the contributions of him and his former wife to the pool of assets and assess each of their needs into the future.
I told the husband that once the pool is crystallised by the finalisation of the Supreme Court proceedings, he and his former wife may make submissions to me in relation to the percentage entitlement to the pool of assets having regard to the above factors and with knowledge of the crystallised value of the pool. That I would entertain an application for further evidence to be adduced once the pool is crystallised if that be necessary given it is important for a judge to know the value of the asset pool in their determination.
I adopted this course as urged upon me by the wife’s legal team that she has expended significant funds in having the matter prepared for the hearing before me and prior to the husband’s application for adjournment. When the adjournment application was unsuccessful, the husband sought I disqualify myself
In relation to the property matter I will proceeded to determine and hear the matter on the following basis:
(1)Identify the matrimonial assets which include a determination of the wife’s assertion that the husband is the alter ego of the following companies: The Scott Group of Companies
(a)DD Pty Ltd Proprietary Limited (“DD Pty Ltd”)
(b)I Pty Ltd
(c)CC Proprietary Limited (“CC Pty Ltd”)
(d)P Proprietary Limited (“P Pty Ltd”)
(e)KK Proprietary Limited (“KK Business”)
(f)QQ Proprietary Limited (“QQ Pty Ltd”)
(g)The JJ Trust which owns the property at F Street Suburb MM
And determine whether the assets owned by these companies are assets effectively controlled by the husband and thus are matrimonial property.
QQ Pty Ltd is a rent incorporation and did not feature in this matter. KK Business is now de-registered and did not feature in this matter however the husband was the owner of the business name.
(2)Assess each parties contribution based entitlement to the assets as I found them to be for their past contribution both direct financial, indirect and as parent and homemaker and express that contribution as a percentage of the parties assets
(3)Assess each party’s capacity to provide for their future needs and determine whether I should adjust their percentage based entitlement for their past contribution having regard to their future needs and capacity to provide for those future needs
I will leave open the finalisation of the property judgement and the determination of what each party is to receive until after the Supreme Court proceedings have been completed and the pool is crystallised.
The property proceedings may be finalised by way of parties providing submissions to me on the precise monetary figure each was to receive and I will entertain an application by either party to reopen on a limited basis once the Supreme Court proceedings are finalised if that be necessary.
I will determine to finality the wife’s applications for a variation of final orders for the husband’s time with the children, spouse maintenance and that the husband be subject to a vexatious proceeding order (declared a vexatious litigant in the old terminology), together with the husband’s application to reopen the parenting proceedings.
I conducted the hearing in the husband’s absence however I carefully read the material he filed for the final hearing, it being most important that I understood his position in this matter, not only in relation to his children but also in relation to property. There is no doubt the husband was a wealthy man when the parties met, earnt a substantial income during the marriage and he has made a substantial direct financial contribution to the assets of the marriage.
THE CHRONOLOGY OF EVENTS
The husband is 51 years old and was born in 1970 in Australia.
The wife is 47 year old and was born in 1973 in Country X, migrated to Australia in 2000 and became a citizen in 2003.
From 24 June 2003 to 25 June 2006 the husband was a director of I Pty Ltd.
In February 2005 the parties commenced a relationship.
In 2005 the husband purchased the former matrimonial home, the Suburb E property, for $1,820,000 and obtained a mortgage with the Commonwealth Bank of Australia for $501,000. The remainder of the purchase price including stamp duty and the like, was provided by the husband.
On 18 November 2006 the parties became engaged and commenced a de facto relationship.
In 2007 their eldest daughter, C, is born, currently aged 14.
On 1 September 2009 the JJ Trust is established.
On 7 January 2010 the parties separated and proceedings were commenced.
In 2010 the parties’ youngest daughter, D, was born, currently aged 11.
On 12 November 2010 the proceedings were discontinued by the husband and the parties reconciled.
The parties were married in Country X, East Africa in 2010.
In 2013 I Pty Ltd purchased the Suburb MM property for $610,000. No loan was or is secured against this property. This property is now owned by the JJ Trust
On February 2014 the parties briefly separate. I Pty Ltd lodge a caveat over the Suburb E property for an alleged unsecured loan of $1,379,315.
On 30 April 2014, the wife commences proceedings in the Federal Circuit Court of Australia, in relation to property matters, and the parties reconcile again.
On 5 May 2014 the parties separate on a final basis.
On 7 May 2014 DD Pty Ltd is established.
On 20 June 2014 the wife joins parenting proceedings to the property proceedings.
On 24 October 2014 interim parenting orders are made by Judge Kemp for the children to live on a week about basis with each parent.
On 29 October 2014 the husband contracts with Mr and Ms Phong (“the Phongs”), to sell the Suburb E property.
On 3 December 2014 the husband fails to complete the contract due, he asserts, to an alleged failure to discharge his purported loan from I Pty Ltd for the initial purchase of the property.
On May 2015, I Pty Ltd commences proceedings in the Supreme Court against The husband for possession of the Suburb E property due to alleged default on the loan agreement, which they purport was entered into on 3 August 2005. The proceedings were determined by consent and I Pty Ltd took possession of the Suburb E property in satisfaction of the debt.
On 25 June 2015 Judge Kemp restrained the husband from selling, transferring or encumbering the Suburb E property.
On 5 August 2015 the husband transferred the Suburb E property to P Pty Ltd for $2,040,000.
On 29 October 2015 orders are made by Judge Kemp restraining P Pty Ltd from selling, transferring or further encumbering the Suburb E property.
On 5 November 2015 the Phongs obtained an order for specific performance against P Pty Ltd in the Supreme Court of New South Wales in relation to their purchase of the Suburb E property.
On 15 March 2016 the wife is served with a statement of claim by the Phongs regarding the Suburb E property, and is named as the second respondent. She is totally blameless in this litigation.
On 31 August 2016 proceedings are transferred to the Family Court of Australia, as it then was.
In 2017 the Supreme Court delivered a judgment deeming the 2005 contract entered into between the husband and I Pty Ltd as a “fiction”.
On 15 May 2017 orders are made by the Supreme Court as follows: a declaration that the transfer of property from I Pty Ltd to P Pty Ltd was defeasible by fraud; secondly, the Suburb E property vested in the husband and thirdly; the husband specifically performed the contract for the Phongs to purchase the property.
On 7 August 2018 the husband files an Application in a Case in the Family Court of Australia seeking the transfer of the Suburb E property be set aside or, alternatively, the proceeds of sale be paid to I Pty Ltd. Berman J dismissed that application on 18 June 2019.
On 31 August 2018 an Application in a Case is filed in the Family Court of Australia by Ms Scott, the husband’s mother, on behalf of I Pty Ltd. This application was dismissed by Berman J on 18 June 2019. Ms Scott is a director of I Pty Ltd.
On 2 August 2019 Berman J delivers reasons for judgment and declares I Pty Ltd to be the alter ego of the husband.
On 15 August 2019 final parenting orders are made by Berman J as follows; that the parties have equal shared parental responsibility; that the children live with the wife, and they spend four nights a fortnight with their father, and time in the school holidays.
On 30 August 2019 the husband filed an appeal against Berman J’s final parenting orders made on 15 August 2019. The appeal was found to be abandoned on 9 October 2019. The husband filed an Application in an Appeal seeking to reinstate the Notice of Appeal. The Application was dismissed.
On 17 September 2019 the husband files an Application in a Case seeking to vary the final parenting orders, and for Berman J to disqualify himself. That Application was dismissed on 13 November 2019.
On 17 September 2019 the husband files an Application for Contravention. This Application is dismissed by the senior registrar on 13 November 2019.
On 20 September 2019 the husband files an Application for Review of the senior registrar’s orders. This was dismissed on 27 September 2019.
On 23 October 2019 orders were made by Berman J for I Pty Ltd and the husband to be jointly and severally liable for the wife’s costs and the costs of the Phongs of the application filed 7 August 2018. The wife’s costs were $4800 and were to be paid by 18 December 2019 and they have not been paid by the husband.
On 18 December 2019 the husband files an Application in a Case seeking the children live with him, despite final parenting orders. The application was struck out on 9 July 2021
On 8 January 2020 the husband files an Application in a Case in relation to further parenting orders despite final orders already made. This was struck out on 15 January 2020.
On 24 February 2020 the parties divorce.
On 12 March 2020 the wife files an Application seeking to declare the husband a vexatious litigant.
On 2 April 2020 I dismissed all the husband’s outstanding applications except the wife’s application declaring the husband a vexatious litigant.
On 23 June 2020 wife files an Application for Contravention of the non-payment of costs order.
On 9 July 2020 I made orders granting the wife leave to make an oral Application for a Recovery Order for the child, C; that the husband was to return C to the wife by 5 pm that day; that a recovery order was to lie in the registry to be activated if he failed to comply; granting leave to make an oral application to stay the final parenting orders, in relation to spend time with arrangements and the liberty for parties to take the children overseas. The recovery order remained in place for 12 months.
On 10 July 2020 the husband files an Application in a Case seeking to stay the orders made 9 July. This was dismissed on 10 July 2020 following an ex tempore judgement
On 20 August 2020 Ms Scott, on behalf of I Pty Ltd files an Application in a Case that Berman J be disqualified. That application was dismissed on 26 February 2021.
On 20 September 2020 the husband files an Application in a Case seeking a review of the orders made by Registrar Turner on 3 September in relation to costs of the Phong’s to be paid by I Pty Ltd. This review was granted on 19 February 2021.
On 21 September 2020 the husband files an application to vary Berman J’s orders of 23 October 2019 and to stay the orders made on 2 August 2019. I dismissed that application on 26 February 2021.
On 30 March 2021 interim parenting orders are made for the children to spend time with the husband from after school Friday to 5 pm Sunday each alternate weekend, and these are the orders the wife seeks to be maintained.
On 24 April 2021 the husband files Application for Review of the senior registrar’s interim parenting orders. This application was dismissed on 26 July 2021.
On 16 June 2021 the he husband files two Applications in a Case seeking I be disqualified , for the discharge Orders made 9 and 10 July, and that proceedings be transferred to the Federal Circuit Court at Parramatta. All applications were dismissed.
On 16 June 2021 the husband’s applications seeking an extension of time to file an appeal against the Orders of 9 and 10 July 2020, out of time was dismissed and the husband was ordered to pay the wife’s costs in the sum of $1022.67, which he has failed to pay.
On 28 July 2021, the husband files an Application that I be disqualified, that Order made 9 and 10 July 2020 be discharged, and the proceedings be transferred to the Federal Circuit Court of Australia. The application was dismissed on 13 August 2021.
On 4 August 2021 the husband files an Application in a Case seeking a stay of the orders made on 23 July 2021 by Senior Registrar McNamara in relation to the dismissal of subpoena objection. These applications were dismissed.
On 8 September 2021 the husband files a Notice of Appeal of orders made 13 August 2021 dismissing his Application for an adjournment. The husband sought a stay of the order dismissing his Application for an adjournment; a stay of orders dismissing his objections to subpoena, stay of orders for substituted service, and stay of an order dismissing his Application for Review of the registrar’s orders.
On 9 September 2021 the husband files an Application in a Case seeking a stay of the orders made 13 August 2021 by me in relation to the dismissal of his application for the disqualification of Justice Henderson and the dismissal of his adjournment application.
That appeal is yet to be determined
On 20 September 2021 the husband files an Application in a Case seeking a review of Senior Registrar McNamara’s orders of 20 September 2021 relating to viewing of subpoena material produced by various financial institutions. This review was dismissed on 27 September 2021.
On 23 September 2021 the husband files an Application for Review of Senor Registrar McNamara’s orders of 22 September 2021 relating to the viewing of subpoena material produced by financial institutions. This review was dismissed on 27 September 2021.
SHORT SYNOPSIS
The wife’s position is that the entire group of companies (“the Scott Group”), referred to in paragraph 43 of this judgement are the alter egos of the husband despite him not holding any office or having any shareholding in those entities.
The wife asserts that the moneys held in the Supreme Court which are currently $1,973,835; the moneys standing in the DD Pty Ltd account of $309,542; and the Suburb MM property, being a property owned by the I Pty Ltd Trust, are part of the matrimonial pool as the husband is in reality the controller of the entities that owns these assets. Additionally there is the money the husband caused to be transferred out of the DD Pty Ltd account amounting to $1.3 million in June 2021 the whereabouts of which are unknown.
The wife asserts that the husband has acted in a fashion to deprive her entitlement to that pool, which could, even with the costs claim of the Phong’s of some $400,000 being successful and including the 1.3 million removed in 2021, amount to a pool of $4 million.
The husband denies the wife’s claim and asserts he is without assets or income and is effectively supported by his family.
The husband has filed no less than 20 separate Applications in a Case, on many occasions doubling up the orders sought in the applications, made multiple oral applications by way of email, and the like, which have been entertained in the administration of justice.
The husband has filed seven appeals, all of which bar one have been dismissed.
The husband has filed, or has had filed on his behalf, 56 affidavits.
There have been 51 court appearances since 2014.
There have been, in the Family Court alone, 17 separate judgments delivered by Judges.
Schedule 1 to this judgement sets out this chronology in the Family Court now Division 1 of the FCFCOA.
I was informed by Mr Duc, acting on behalf of the wife, there has been some 16 judgments delivered in the Supreme Court. Despite the husband’s assertion to the contrary, the husband has failed in every application he has brought or been involved in in the Supreme Court, as has any company with which he has been associated.
Wife’s Exhibit 22 is an text from The husband to the wife, dated 9 January 2021:
Ms Munayallan, you’re delusional living in a pipedream. You are chasing something which is not even a remote dream ... Read all the High Court judgments not one in your favour. The Supreme Court and High Court is a real law, not based on emotions.
Read the […] Supreme Court transcripts, the judge was about to reverse everything and the Phongs where not to about to get the house.
Read the last Supreme Court judgment. The bullshit performance and lies your barrister put on was a joke, and the judge didn’t listen to one thing.
I said it will be another 7 years and you be an old lady and still have nothing to show. The only thing you have did is completely damage the children.
So stop chasing something which is no there/possible and let the children to be free and spend proper time with me.
God will never forgive you for what you’re doing to the children. You are digging yourself in a
Huge moral sin which you have never get yourself out of. Hasn’t life already taught you enough pain by the
Losses which you incurred in your life, but you keep going down the same road.
(As per original)
These are prophetic words as the husband keeps going down the same road. He will not accept a decision from any judicial officer, of any court, at any level with which he disagrees. The husband is entitled to disagree with judgments, but his conduct and his course of action is what is at issue here. He has filed multiple applications which have been unsuccessful. He files objections to subpoenas in respect of subpoenas which have not been issued to him. For example, he has filed objections to subpoenas addressed to I Pty Ltd; DD Pty Ltd; bank accounts for I Pty Ltd, DD Pty Ltd, CC Pty Ltd and P Pty Ltd, companies he says he has no interest in or control over; objects to the production of documents in relation to bank account details for his mother; subpoenas addressed to Mr M and Ms HH.
The husband was the only objector to subpoenas issued by the wife in the preparation of this hearing. None of the persons or companies to whom the subpoena were addressed filed an objection to production. This fact and the decisions of Berman J in this Court and in the Supreme Court is support for the wife’s contention that the husband is the alter ego and controller of the Scott Group. On face value he has no standing to make objections to the production of usual company records yet, he alone did so in his personal capacity on behalf of all of the Scott Group.
Similarly, with the subpoena addressed to his mother, Ms Scott. Ms Scott made no objection only the husband did, further supporting the wife’s case that he is in control of his mother’s financial affairs.
I made injunctive orders against Mr M, Ms HH, I Pty Ltd and Ms Scott on 29 September 2021 in relation to them access RR Bank accounts to which they had access personally or as company directors and secretaries. I also joined I Pty Ltd, DD Pty Ltd, CC Pty Ltd and Ms Scott to the proceedings between the husband and the wife.
The precise injunctions made on 29 September were as follows:
(1)That the husband and all other parties joined to these proceedings, namely, I Pty Ltd, DD Pty Ltd, CC Pty Ltd, and Ms Scott, are restrained by injunction from the sale, transfer or other dealings in relation to the Suburb MM property and from further encumbering the Suburb MM property.
(2)Order 18 being an order freezing all bank accounts held by DD Pty Ltd, I Pty Ltd and CC Pty Ltd, and restrained the husband, or such other entities of which he has control, from depleting or withdrawing any moneys in those respective accounts
(3)An order freezing the accounts of Ms Scott, up to an amount of $1.3 million, otherwise she was free to deal with her accounts.
(4)I noted at Order 20 that the Court will entertain any application to remove the restraints pursuant to orders made on 29 September 2021, and ordered at Order 21 that the parties so affected could approach my associate in chambers to obtain a listing.
Not one of the affected parties has contacted chambers to argue these injunctions should be lifted in relation to them accessing company bank accounts, their personal accounts or dealing with the Suburb MM property owned by I Pty Ltd Trust
If either Mr M and/or Ms HH are involved in the day to day operation of these companies and run the companies’ business from the Suburb MM property, I would have anticipated they would have approached the Court to remove these injunctions.
Similarly in freezing, in part Ms Scott’s personal account, I would have expected she would seek to have that injunction lifted. Ms HH had clearly been served with the subpoena to attend the hearing and give evidence as she wrote to the Court on 29 September 2021 saying she had an adverse reaction to a COVID inoculation and could not attend the hearing. This is an echo of the husband’s reason why the hearing could not commence on 27 September 2021.
The injunctive orders were served on her by the Court at the email address she had provided. Mr M was served with the injunctive orders via an email address he had previously provided to the Court.
Neither Mr M, Ms HH, nor Ms Scott have contacted the Court to object to the freezing order, and no other affected person or entity has moved the Court in relation to these injunction. Only the husband has done so.
When the husband’s personal accounts were inadvertently frozen by the Commonwealth Bank and he moved the Court to correct this error, he did so within hours of the order being made, and he was successful.
Further, although the husband says he has no involvement in these companies he is named a person able to deal with the bank accounts of these companies as follows.
He has described himself in many bank documents as a company secretary or other office holder as follows:
(a)The wife’s’ evidence in Exhibit 15 shows that although the husband is not an office bearer or shareholder in any of the aforementioned companies and Trust, he is authorised to operate the bank accounts of I Pty Ltd and DD Pty Ltd. This is consistent with his description of himself in loan documents to the RR Bank that he was the Secretary of I Pty Ltd, a matter he has denied in these proceedings. It suited the husband’s purposes to describe himself as such to the bank to obtain a loan but not in this Court as that would be a link to the assets of these companies that he denies are his assets.
(b)Further it is apparent that the ASIC documents produced under subpoena and marked Wife’s Exhibit 18, do not reflect who is in control of these companies. However, the husband’s actions and conduct do.
(c)From exhibit 15 it is clear that the husband caused $1.3 million to be moved out of the DD Pty Ltd account held at the CBA in June 2021, using both Ms HH who was named a director of the company for some 8 to 9 days according to ASIC documents and then Mr M who remains a director. The Commonwealth Bank would not permit the husband to withdraw these funds initially as Mr Scott had an old ASIC form naming Ms HH as a director and the bank refused to permit the withdrawal. Mr Scott returned with documents confirming the directorship and he and Mr M returned to the bank the following day and withdrew $1.3 million from the DD Pty Ltd account.
(d)Ms HH had also written to the Bank confirming Mr Scott had full authority to operate the account as set out in Wife’s Exhibit 20 a most unusual privilege for a person who has nothing to do with a company which has over $1.3 million in its account.
(e)It was evident from a perusal of the bank documents produced under subpoena and marked Exhibit 15 that the husband was the moving party in this transaction. The wife believes this money was transferred to an account in Mrs Scott’s name but is unsure as Ms Scott did not produce documents sought under subpoena and did not attend the hearing to be cross examined .
At page 62 of 103 of the wife’s Court book the husband asserts to the RR Bank in 2014 he has been employed by I Pty Ltd for 25 years and 6 months. He was born in 1970 thus making him 15 years of age when he commenced with that company. He claims to be the 1st authorised signatory of the RR Bank account for I Pty Ltd and his mother the 2nd and described himself as the Company Secretary.
In 2015 he described himself as the Company secretary of DD Pty Ltd to the RR Bank and put the Suburb MM property as his residential address. He acted as if he was the Company Secretary in June 2021 at the bank.
In 2014 he described himself as the Manager of I Pty Ltd to the RR Bank and acted as if he was the manager of the Company before Justice Berman in 2019 and as described below.
The conduct was as follows.
Mr M appeared before His Honour in his capacity as the company director of I Pty Ltd. When asked questions by His Honour in his capacity as a Director it became apparent he knew nothing about the company see para 49 of His Honour’s judgement[1]. Further Mr M, deferred to the husband when he was being asked questions about the company, the husband interjected to correct statements Mr M was making to His Honour and provided him with documents and information whilst Justice Berman was asking him questions including retrieving documents from the Bar Table.
[1] Munayallan & Scott [2019] FamCA 549 at 49.
This evidence is consistent with the findings of Berman J in his decision of July 2019, at paragraph 51 “the evidence supports the findings that between 2003 and 2007 the husband was the sole Director of Scott Group and the conduct of Mr M and Mr A Scott would invite a finding that Scott Group is the alter ego of the husband”.[2]
[2] Munayallan & Scott [2019] FamCA 549 at 51.
The wife‘s documents support over 16 serious errors in the documentation the husband has provided to ASIC and various banks.
The mistakes in the company listings are legion:
(1)I Pty Ltd – “Mr Scott” (W-1 2/103) in Organisation address, and again misspelt on 3/103
(2)I Pty Ltd – “Mr Scott” (W-1 3/103) date of birth is … 1971 (Husband’s real date of birth is 1970, not 1971)
(3)I Pty Ltd – “Ms Scott” (W-1 3/103) date of birth is … 1935
(4)I Pty Ltd – “Mr Scott” (W-1 3/103) is misspelt.
(5)I Pty Ltd Pty Ltd – Ms Scott’s date of birth is … 1936
(6)I Pty Ltd Pty Ltd – Mr M’s name is spelt as Mr M as a current director but as Mr M on page 11 of 103 W-3.
(7)RR Bank account – Mr Scott signs as a company secretary when the ASIC records do not show him as secretary – page 64 of 103 W-16.
(8)RR Bank account – Mr Scott puts the identical details for driver’s licence, date of birth and mother’s maiden name (p65 of 103). This must have been forged – Ms Scott could not have signed this document.
(9)RR Bank Account – Mr Scott puts the name of the external bank account linked to the Business Account as DD Pty Ltd, and then signs.
(10)RR Bank Account – Mr Scott signs as secretary, when not appointed as such.
(11)RR Bank Online Application Form – the name of the external bank account is I Pty Ltd and then signed by Mr Scott. Again, he signs as secretary when not appoints (p75 of 103 at W-16.
(12)RR Bank Account – Mr Scott signs as Manager (p76 of 103)
(13)DD Pty Ltd – in Organisation Officers, Ms HH and Mr L both have the same address, although it is unclear whether they were just living together or it not the residential address they resided at. As it is listed as the Organisation Address, it is unlikely.
(14)CC Pty Ltd Pty Ltd – Mr L has changed his residential address to being F Street Suburb MM, which is where CC Pty Ltd has its working address. (at W-22 at p95 of 103).
(15)Mr K Scott’s bank account is also misnamed as “Mr K”.
(16)Mr K Scott’s birth date was also wrong, and the subpoena to NAB was not able to be answered.
In relation to CC Pty Ltd, Mr M is the named Director. This company recently purchased property at Suburb SS NSW and the children told their mother of this property and its address. Given Mr M’s performance before Justice Berman, Justice Aldridge’s findings in the failed Appeal, and the removal of $1.3 million from the DD Pty Ltd account I can infer that Mr Scott pulls the string of this company as well and any company in which Mr M is said to be a director namely, I Pty Ltd, DD Pty Ltd and the I Pty Ltd Trust which owns the Suburb MM property.
In Justice Pembrokes decision dated 15 May 2017, His Honour found that Mr K Scott, the husband’s brother who was the named Director of P Pty Ltd the company at the centre of the Supreme Court litigation, knew little of the day to day operations of the Company and even less of the operations of I Pty Ltd although he had signed off on certain documents and His Honour described him as a sad case.[3] Again it was Mr Scott who pulled the strings in his attempt to defeat Mr Phong’s claim a similar modus operandi to his conduct in attempting to defeat the wife’s claim in this Court.
[3] Phong v P Pty Ltd (No 2)
THE LAW
A court may attribute ownership of property of a third party to a party in a marriage. What is necessary for such a finding in this matter is that the third party, the Scott Group, is completely under the control of the party to the marriage, the husband (Mr Scott). Justice Gibbs in Ascot Investments Pty Ltd v Harper (1981) 148 CLR 334; (1981) FLC 91-000:
“The position is, I think different if…a company is completely controlled by one party to a marriage, so that in reality an order against the company is an order against the part, the fact that in the form the order appears to affect the rights of the company may not necessarily invalidate it” (at paragraph 343).[4]
[4] Ascot Investments Pty Ltd v Harper (1981) 148 CLR 334; (1981) FLC 91-000.
This principle has been important in this jurisdiction where often due to complicated corporate and trust structures at first blush, a party to the marriage appears to have no control over valuable assets in the name of a company or trust. Ashton & Ashton (1986) FLC 91-777, Stein v Stein (2000) 155 FLR 81; (2000) FLC 93-004, Harris v Harris [2012] FamCA 987, set out these well-established principles wherein after testing the evidence it becomes clear that the party to the marriage is in total control of assets ostensibly in the control of a third party such as a company or a trust. It is the conduct and actions of the party to the marriage in dealing with the assets of the third party that lead to such a conclusion.
The husbands’ conduct, his signed bank and ASIC records, Mr M and Mr K Scott’s lack of any knowledge of any of the day to day operations of the Scott Group of Companies, Justices’ Berman, Aldridge and Pembrokes decisions, is compelling and overwhelming evidence that the JJTrust and the Scott Group and their assets are totally controlled by the husband and not the persons who on the ASIC documents are said to be the directors, are his alter ego and thus their assets form part of the matrimonial pool for division.
The clear evidence is that the persons who on the ASIC documents are said to be the directors, namely; for I Pty Ltd, Mr M and Ms Scott; for CC Pty Ltd, Mr M, for I Pty Ltd Trust, Mr M and for DD Pty Ltd, Mr M are not in control of these companies and the trust.
The wife’s case that these companies, various entities and their assets as set out in the balance sheet tendered by the wife, and marked Wife’s Exhibit 17, are in the control of the husband and are his alter ego, has been made out by the wife and I so find.
The matrimonial assets are as follows:
Ownership Description Wife’s estimated value 1 Husband Funds held in the Supreme Court of NSW from the proceeds of sale of the former matrimonial home $1,973,835 2 Husband I Pty Ltd Pty Ltd ATF JJ Trust E $1,200,000 3 Husband P Pty Ltd E $15,860 4 Husband DD Pty Ltd E $309,542 5 Husband KK Business Not Known 6 Husband CC Pty Ltd Pty Ltd Not Known 7 Husband CBA Complete Access account ending …85 $1,500 8 Husband RR Bank account ending …70 $53 9 Husband TT Bank Ultimate Saver account ending …14 Not Known 10 Wife CBA account ending …88 $35 11 Wife CBA account ending …91 $129 12 Wife CBA account ending …76 $591 13 Wife NAB account ending …88 $961 14 Wife NAB iSaver account ending …29 $2,899 15 Wife NAB account ending …92 $0 16 Wife Motor Vehicle 1 $2,500 17 Wife Funds held in solicitors’ trust account $1,445 18 Wife Household contents $3,000 19 Wife 50% interest in UU Pty Ltd NIL 20 Husband Furniture from the former matrimonial home E $40,000 21 Husband Motor Vehicle 2 E $1,500 Total $3,553,850 CONTRIBUTION TO THE MATRIMONIAL ASSETS
I am unable to accept anything the husband asserts unless I have independent evidence to corroborate his story, or the wife agrees, for he is not a witness of truth for the reasons that follow.
His affidavit contained little evidence in relation to property issues focussing on the parenting aspect of the matter.
He has either lied to banks regarding his office bearing capacity in the Scott Group of companies, or he has lied to the Court that he has no interest in or anything to do with these named entities.
He tendered a medical certificate to the Court on 27 September 2021 which had been tampered with as it was different to that which was produced under subpoena from the medical centre which issued the certificate initially.
He told the Court he had suffered a mild heart attack and was to have an angiogram and none of this was revealed in the notes of EE Hospital.
He did not tell the Court he was to appear in Suburb NN Local Court on 11 October 2021 until 8 October 2021, yet he had been told on at least 1 October 2021 that it was likely the hearing would resume in that week
These are but some of the falsehoods the husband has maintained.
In contrast the wife’s affidavit sets out clearly and succinctly the significant contribution she has made as a parent and homemaker to the husband and to the two children of the marriage. I accept entirely her evidence that throughout the marriage the husband worked long hours. That he traded in shares, he is a technology and finance professional. That his work was important to him, he was successful, and he told her he was wealthy. He did not need to go to banks to obtain loans to buy property, for example, the Suburb E property which he self- funded some $1.3 million dollars to purchase and the Suburb MM property which was purchased in 2013 outright for $610,000 using the vehicle of I Pty Ltd.
Wife’s Exhibit 16 attests to the capacity of the husband to generate income. Documents in the Exhibit support a finding of over 12 million in deposits into the husband’s accounts with TT Bank between September 2011 and 23 April 2014. There is no evidence that the husband has been unable or has not been able to generate similar income post separation. The only evidence I have from him as to his income is that he says he is a carer for his mother and has an income of some $620 a week. I reject that evidence in the absence of proof or agreement given the inherent unreliability of the husband’s words. The weight of the evidence produced by the wife is to the contrary.
There are two children of the marriage and I accept her evidence that she was and is the children’s primary carer. The wife worked and assisted her husband in their business via I Pty Ltd. I accept her evidence that his work and business was their primary source of income.
I accept the husband has made, a superior initial financial contribution to the assets of the marriage, which I find are the proceeds of sale of the former matrimonial home, being the Suburb E property, the Suburb MM property valued at $1.2 million and the remaining money in the balance sheet of $309,000 in the DD Pty Ltd account .I will include in the pool for division the $1.3 million in the DD Pty Ltd bank account as at June 2021 which Mr Scott caused to be removed. The wife has continued to contribute to the value of the Scott Group of Companies post separation in her care of the children in most difficult circumstances and separation does not necessarily mean a lack of contribution to matrimonial assets (See Pierce v Pierce (1998) FLC 92-844; [1998] FamCA 74 and Ferraro v Ferraro (1993) FLC 92-335; (1992) 16 Fam LR 1).
This is total assets of $4.7 million
Assuming the Phongs are successful in their application, the moneys in the Supreme Court will reduce to $1.5 million. This would give a matrimonial pool of $4.3 million.
I do not accept that the case being run by Ms Scott and I Pty Ltd that the husband owes them, combined $1.9 million has a reasonable prospect of success, given the decisions by the Supreme Court that the agreements entered into between the husband and I Pty Ltd being an asserted loan of $1,379,315 to purchase the Suburb E property was a sham and set aside as defeasible due to fraud.
However if I am incorrect, and there are no funds left in the Supreme Court proceedings, there are still assets of $2.85 million to be divided. I accept that it may now be difficult to ascertain the whereabouts of the DD Pty Ltd monies of $1.3 million that the husband caused to be moved out of the CBA account in June 2021 given he did not participate in this hearing and could not be cross examined. However CC Pty Ltd recently purchased a property at Suburb SS and perhaps this is where those funds ultimately landed.
The wife has also made a contribution to the assets by way of her role as parent and homemaker during the relationship and significantly post-the relationship when she has had the care of the children of the marriage. The husband has paid little child support, a paltry sum of some $12 per week.
The wife has been embroiled in litigation in the Local Court, the District Court, the Supreme Court and the Family Court due entirely to the husband’s conduct. The husband made false allegations that she assaulted him at separation. A magistrate accepted those allegations, issued an AVO, and placed her on a bond. When the matter went before the District Court, Judge Scotting described the husband’s evidence as nothing but “[…] lies” and dismissed the AVO.
The wife has at times appeared for herself in this Court and the Supreme Court and has at times been represented. The wife has been involved in no less than 51 Family Court appearances and multiple Supreme Court appearances in a matter she had no involvement in creating or continuing, whilst parenting the children and responding to numerous reviews, Applications in a Case, appeals and seeking a Recovery Order in this Court.
The husband minimises the wife’s contribution to their assets and exemplary parenting of the children in most difficult circumstances
He criticises her accommodation and complains that the children live in a small two bedroom flat when he pays virtually no child support and boasts he has the use of a comfortable property at Suburb E rent free. The husband’s asserted use of this accommodation is inconsistent with his claim that he is the carer of his mother and earns no income. The wife must pay the high prices for rental in Sydney.
The husband writes her rude emails, minimises her contributions, minimises her intellect, minimises her contribution to the children and her capacities, and complains in his affidavit that the children have fallen behind in school due to their mother’s inability to assist them with their homework, a matter he prides himself on being better able to do. The reality is C, the older child, is an excellent student and D, the younger child, also performs well and the both are conscientious students.
The husband has made the wife’s role as parent and homemaker far more arduous than it need have been in that he has not financially supported his children to the best of his ability, has denied the wife access to her entitlement to property and has acted to minimise the matrimonial pool for division resulting in the wife having to file voluminous subpoena to discover the reality of the husband’s wealth, has unduly delayed the hearing of the matter to finality, and has criticised and demeaned the wife in his affidavit, and to his children.
His conduct has also resulted in the wife being unable to continue studies to improve her employability and she has had to be content with two lower paid jobs that give her the flexibility she needs to respond to his avalanche of applications. This marriage and his conduct have negatively impacted upon the wife’s income earning capacity
The husband has a high income earning capacity which he exercised during the relationship and I find he is still so exercising. He has used the various entities and trust named in this judgement in an attempt to hide his wealth from the wife and the Court. The husband is an intelligent and well educated man and is well able to support himself into the future as he now does and has done in the past.
In the light of these facts I assess the wife’s contribution-based entitlement to the assets for the past, including seven years post-separation in being without her entitlement to the pool, primarily caring for the children without adequate financial support and privately renting to be 45 per cent, despite the husband’s initial superior direct financial contributions.
CALCULATING FUTURE NEEDS
Going to the wife’s future needs. The husband will never pay child support, no matter what happens, despite his wealth. He will continue to conduct himself in the same manner into the future as he has in the past. Whenever the wife is successful he will appeal, review or simply not comply. He has not complied with 3 separate orders to pay the wife costs, and this is the only opportunity the wife has to ensure that her children are properly provided for and that her reasonable needs are satisfied.
There is no doubt the conduct of the husband, post-the marriage in particular, has meant the wife cannot fulfil her potential for full time employment. The wife currently has two jobs and earns a modest income of $500 gross weekly and it is the only income that she and the children are supported on. The wife has a debt to Legal Aid of some $91,000, significant legal fees for these proceedings of in excess $170, 000 and a HECS debt of $42,000 some of which will be satisfied from her judgement
In circumstances where she is the primary carer of an 11 year old and a 14 year old, the husband will never appropriately support his children and will continue to minimise her role as a parent homemaker and she will never achieve the income earning capacity of the husband, I assess her needs into the future to be 25 per cent, giving the wife a total entitlement of 70 per cent of the pool and the husband 30 percent.
I have made this assessment of contribution based entitlement on an assumed asset pool of over $4 million. If I be incorrect on the value of the pool after the Supreme Court proceedings are finalised, these percentages may need adjustment as it is important for a judge, particularly in relation to the future needs, to know what is available for distribution as between the parties.
LUMP SUM SPOUSE MAINTENANCE ORDER
Going now to the wife’s claim for lump sum spouse maintenance in the amount of $100,000.
The husband has not complied with the order to pay the wife $1000,000 by way of interim property settlement and I will discharge this order
$100,000 is 2.5 per cent of an asset pool of $4 million.
Pursuant to section 72 of the Act, I find the wife is unable to support herself adequately due to her care of the children, the husband’s conduct generally and in particular his abject failure to provide financially for his children.
The wife also seeks the children live in more comfortable accommodation than currently and her expenses are modest and well below reasonable as set out in her financial statement. The wife cannot support herself adequately to a reasonable standard on her income and there are now assets available to ensure she has a reasonable standard of living into the future I find the proper level of maintenance for the wife is $10,000 a year for 10 years paid by way of a lump sum of $100,000. It is appropriate to make a lump sum order for spouse maintenance at this time when there are assets to divide. Given the husband’s abject failure to comply with orders of this Court to pay his wife’s costs which have been ordered on no less than 3 separate occasions I have no confidence that he will comply with this order into the future. This order will be satisfied from his entitlement to property.
PARENTING APPLICATION
Going now to the parenting application.
The husband has resisted every attempt I have made to prepare this matter and have it ready for trial. He has resisted every attempt I have made to hear his evidence, have the evidence tested, and conduct himself in an appropriate fashion ensuring I would have the best evidence available to me to make the best decisions for him, his former wife and his children.
The affidavit he filed in these proceedings gave me very little by way of information about property. It was filled with concerns about his children; the care of the children by the wife; his mother and father’s capacity to build up assets and businesses; that the wife is abusing his children; that their education is suffering due to the wife’s inability to assist them with their homework; that they, to use his words, “live in a small two-bedroom apartment” (at para 53 of his affidavit filed 24 September 2021), whereas he has the use of “a beautiful property at Suburb E” (see para 50 of his affidavit filed 24 September 2021), which he pays no rent for apparently.
These are all factors which tend to show that he has not supported his children in their mother’s care to the best of his ability, and that he is living a life which his income as disclosed in his financial statement of $620 per week as a carer part time, is but a fiction. I cannot accept anything the husband says unless it is proven before me and, as he chose not to attend Court to run his case, even though I was clear and I wanted his participation in this matter. I have done the best I can on the evidence he has chosen to file.
His affidavit of 6 August 2021 is merely a recitation of the Supreme Court proceedings which, other than knowing their outcome, are irrelevant to my determination.
The husband seeks to re-open the parenting proceedings.
The law is clear, there must be such a change in a child or a parents living arrangements or changed circumstances or a compelling reason why a Court would re-open parenting proceedings when same have been dealt with to finality and as here, a mere 2 years ago. (See Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 1 and King v Finneran (2001) FLC 93-079 [2001]; FamCA 344.
Thus I must look at, what are the reasons the husband has advanced that would impel me to exercise my discretion to re-open the parenting matter.
His affidavit is a recitation of complaints that were in existence or raised before Justice Berman. The wife’s’ poor parenting skills and lack of parenting capacity; her poor behaviour towards and treatment of the children and the husband; that the wife’s’ partner was in some way abusing the children; inadequate housing provided for the children by their mother; their wishes to live with him; their slipping school performances; and all that he and his family can provide for them by way of education and family relationships contra the wife abilities
As Justice Berman noted, the wife conducted herself with dignity in the face of the husband’s onslaught and cross examination and her dignity was evident before me.
There is not one factor that the husband has raised today that was not before his Honour in 2019, other than he is spending less time with the children than was ordered by his Honour due to his conduct in July 2020 in March 2021.
There is no reason let alone an adequate reason or any evidence that would cause me to exercise my discretion and allow the parenting matter to be re-opened and thus his application is dismissed. To permit such a course would have a seriously negative impact on the wife and her functioning and therefore the children who primarily reside with her. It would further expose the children to ongoing acrimonious litigation between their parents fuelled by their father.
The wife seeks Berman J’s orders remain, save that the current interim orders be maintained i.e. that the children spend alternate weekend with their father from after school Friday to the 5 pm Sunday night and half holidays.
The husband did not adhere to Berman J’s orders of time for four nights a fortnight. He has retained the children when it suited him, had the time with them as he wanted, and a recovery order was issued in 9 July 2020. The children require certainty with their education, certainty of their living arrangements, knowing the regime of time with their mother and their father and to have stability in their lives.
Their mother primarily cares for them and they have always lived with her. The wife tells me the current arrangement of Friday and Saturday night in their father’s care, returning to her Sunday to prepare them for school each alternate weekend and half school holidays, is working well for the children.
The husband said the children were not performing well at school, yet did not attach their school reports, only telling me what he believed the reports described .This is hearsay and given the husband’s inability to accurately record matters when they do not accord with his opinion I reject that evidence. Further, it is contrary to the wife’ evidence. The wife tells me the children are progressing well at school, they are conscientious students, although D does like the social aspects of school. The husband is an intelligent man and their mother an impressive woman and it would be surprising if the children were not conscientious students and performing well.
D told her mother on 2 August, “Dad said you brainwash me and if I listen to you he will punish me by not seeing him for six months” (at para 323 of the wife’s trial affidavit). The children have clearly been caught up in this dispute and there have been difficulties for the wife having the children attend their father’s home, yet despite that fact I am satisfied that she wants them to have a relationship with their father and their extended family.
The wife’s affidavit is replete with the children being very unsettled when returning from their father, saying they don’t want to go to school, they don’t have to go to school; that he takes the children when it suits him and returns them when he chooses. This must be correct as in his affidavit the husband asserts he has the children six nights a fortnight without objection. I accept he does have them for those periods at times but it is not without objection. The court process would become cumbersome and expensive if on every occasion, the wife returned for a recovery order. This is but a further example of the husband endeavouring to wear the wife down by flagrantly breaching Court orders as he did in July 2020.
The wife said on 23 July 2021 D called the wife saying her father had called her, and said, “You are an evil mum for keeping him in court all day. He said he is tired and busy with work so he will pick us up tomorrow” (at para 318 of the wife’s trial affidavit).
On 24 July, D said, “Dad said he will pick us up at 10 am.”, and when he had not arrived by 11 am. D said, “Dad said he will pick us up at 12.” The husband did not turn up till 1 pm. The husband did not return the children until Tuesday, 27 July (at para 319 of the wife’s trial affidavit).
In June 2021, the husband was to return the children on Sunday, 5 pm. He did not return them until 9 pm, despite them having to go to school the next day.
The husband took the children on a cruise on 24 December 2014, during Christmas and did not tell the wife. They did not return to their mother until 27 December, three days later.
The wife has lost a relationship due to the husband’s allegations that the children told him they were uncomfortable with the wife’s boyfriend, Mr O, being in the same house. I restrained the wife from having Mr O in the home when the children were with her so that the children would be protected and they could live with their mother. That caused such friction and this relationship was lost.
Since the making of the interim parenting orders the wife says, “I do not remember a time Mr Scott collected and returned the children on time. He is regularly late…” (at paragraph 317 of the wife’s trial affidavit).
The parties cannot communicate understandably given the husbands’ conduct and attitude to the wife and the orders of the Court.
I prefer the wife’s evidence in relation to the children and I will make by way of final orders, the orders the wife seeks.
I find it is in the children’s’ best interests that the husband spend one block of time with them fortnightly. For children of this age, this is an adequate time to enable them to maintain the benefit of their meaningful relationship with their father and extended family, and maintain the stability of living primarily with their mother and I will so order.
The final parenting orders made by Berman J on 15 August 2019, remain save that the children spend alternate weekends with the husband from after school Friday to 5 pm Sunday night and half holidays
MOTHER’S APPLICATION THE HUSBAND BE DECLARED VEXATIOUS
One needs merely to peruse the schedule of applications appeals affidavits filed by the husband, count the number of appearances in the court being both a drain on scarce resource of the court and the wife’s limited resources to be satisfied that Mr Scott is a consummate filer and user of court resources
Section 102QB of the Family Law Act 1975 (Cth) (“the Act”) deals with making vexatious proceedings orders and is as follows:
102QB Making vexatious proceedings orders
(1) This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:
(a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
(2) The court may make any or all of the following orders:
(a) an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
(c) any other order the court considers appropriate in relation to the person.
Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
(3) The court may make a vexatious proceedings order on its own initiative or on the application of any of the following:
(a) the Attorney‑General of the Commonwealth or of a State or Territory;
(b) the appropriate court official;
(c) a person against whom another person has instituted or conducted vexatious proceedings;
(d) a person who has a sufficient interest in the matter.
(4) The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(5) An order made under paragraph (2)(a) or (b) is a final order.
(6) For the purposes of subsection (1), the court may have regard to:
(a) proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b) orders made by any Australian court or tribunal; and
(c) the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
The section dealing with vexatious litigants is wide to enable the Court to tailor a specific order about a class of applications being brought by a litigant as opposed to the order applying to all applications that may be brought. Importantly a party against whom such an order is sought must be given an opportunity to be heard and the order is a final order.
The husband resists the wife’s application that he be declared a vexatious litigant and he has been given opportunity to be heard on this issues at the resumed hearing on 12 October 2021 which he refused to participate in. The husband has known since June 2020 that the wife was seeking he be declared a vexatious litigant due to the substantial burden his voluminous applications created for her and was aware in January 2021 when I listed this matter for final hearing that this was one of the applications that would be dealt with at trial
Section 102QB(2) of the Act gives the court power to make many different types of orders including staying or dismissing proceedings, the mechanism for leave to commence and any other order the court deems appropriate. This is an important aspect of ensuring that a party is not denied access to justice for there can be no doubt by making an order under this section and requiring leave be granted before a party can commence proceedings, a judge is significantly interfering with a party’s right to approach the court and have their application heard unimpeded.
Justice Kirby in Re Attorney-General; Ex Parte Skyring (1996) [1996] HCA 4; 135 ALR 29[5] at [31]–[32] said:
…it is regarded as a serious thing in this country to keep a person out of the courts. The rule of law requires that ordinarily a person should have access to the courts in order to invoke their jurisdiction. It is a rare thing to declare a person vexatious litigant. It is extremely rare in this court to use the power, whether under the inherent power or under O 63, to require leave before a person may commence proceedings invoking the court’s jurisdiction.
[5] Re Attorney-General; Ex Parte Skyring [1996] HCA 4; 135 ALR 29.
The definition of vexatious proceedings is not exhaustive. It is defined in section 102Q(1) of the Act as follows:
“vexatious proceedings” includes:
(a) proceedings that are an abuse of the process of a court or tribunal; and
(b) proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c) proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d) proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
"vexatious proceedings order" means an order made under subsection 102QB(2).
(2) A reference in this Part to a person acting in concert with another person in instituting or conducting proceedings does not include a reference to a person who is so acting as a lawyer or representative of the other person.
The test under section 102Q of the Act is whether or not there is a history of a person having frequently instituted or conducted vexatious proceedings as defined by statute under section 102Q(1).
It is axiomatic that if a court makes an order prohibiting a person from instituting proceedings they have a right to seek leave to commence those proceedings, and this is precisely what
section 102QE(2) of the Act provides. In a practical sense this is important as it does not prohibit a litigant from approaching the court to pursue an application but at the same time does not require a respondent to respond initially thereby avoiding incurring unnecessary expense, cost and delay.
There are two first steps required under the legislation. The first is to consider whether the proceedings are vexatious within the meaning of the Act, see the definitions in section 102QB, and secondly, whether proceedings have been frequently instituted or conducted
section 102QB(1)(a).
His Honour Justice Benjamin in Cannon v Acres [2014] FamCA 104 (“Acres”) set out the pathway he intended to adopt at paragraph 440 that a party be declared a vexatious litigant as follows:
i) In accordance with 102QB(1) determine which proceedings constitute vexatious proceedings instituted or conducted in Australian courts or tribunals;
ii) If there have been vexatious proceedings, then determine whether such proceedings have been conducted or instituted frequently. In that consideration, there is the ability to have regard to proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal and the person’s overall conduct in such proceedings, including compliance with orders made by the court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted before the commencement of Part XIB of the Act); and,
iii) If that threshold is met, then consider whether to exercise the discretion set out in 102QB(2) of the Act and make a vexatious proceedings order. In considering whether to make a vexatious proceedings order, I must consider the scope and nature of the orders sought by the person against whom a vexatious order is sought and made. [6]
[6] Cannon v Acres [2014] FamCA 104 (“Acres”) at 440.
In the Full Court decision of Pencious v Searle [2017] FLC 93-805 the court reviewed relevant principles that have emerged from other jurisdictions analogous to section 102 QB
In the Full Court decision of Potier v Attorney General in and for the State of New South Wales [2015] 89 NSWLR 284; NSWCA 129 (“Potier”) the word “frequently” was discussed at paragraph 114 that, “the meaning of a word frequently turns very much on its context; that is no different from many other protean words (such as ‘adversely affect’ and ‘mistake’)”, [7] further finding that frequently is a relatively low threshold.
[7] Potier v Attorney General in and for the State of New South Wales [2015] 89 NSWLR 284; NSWCA 129 at 114.
Their Honours further discussed as follows:
It is one thing to file urgent appeals or applications for judicial review which cause substantial disruption to courts and other litigants and participants in the legal system (for example, the adjournment of a trial), or to make serious allegations of fraud unfounded in the evidence. It is quite different to encounter some poorly known legal doctrine which denies reasonable grounds to the proceedings or renders them technically an abuse of process, or to file a series of applications for the annulment of decisions of magistrates…That is the say both the quality of the vexatiousness of a proceeding, and the nature of the proceedings itself, inform the assessment of frequency.[8]
…that the issue posed by the term ‘frequently’ is not to be assessed merely by an arithmetic calculation.[9]
…
That said, the proportion of proceedings which are vexatious is highly relevant to the exercise of discretion to make an order, if the threshold condition is satisfied[10]
(Footnotes omitted)
[8] Potier v Attorney General in and for the State of New South Wales [2015] 89 NSWLR 284; NSWCA 129 at 116.
[9] Potier v Attorney General in and for the State of New South Wales [2015] 89 NSWLR 284; NSWCA 129 at 117.
[10] Potier v Attorney General in and for the State of New South Wales [2015] 89 NSWLR 284; NSWCA 129 at 120.
On the issue of vexatious.
In Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398, Perram J found that where the commencement of litigation of proceedings lack reasonable grounds, and where the litigants’ institution of such proceedings may be fairly said to be both habitual and persistent, it will usually be of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are “manifestly hopeless or devoid of merit”. [11]His Honour further notes that “…it is the related quality of repletion which underpins, in part, a need for the institution of proceedings to deserve the appellations of habitual and persistent”.[12]
[11] Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at 6.
[12] Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at 8.
The husband’s Applications in a Case are prolific, 20 filed in total since 2018.
His initial Application in a Case filed 7 August 2018 sought the Supreme Court proceeding between himself, I Pty Ltd and the Phong’s be transferred to the Family Court and the sale he entered into of the Suburb E property be set aside. This Applications in a Case was amended twice and had no prospect of success whatsoever given those very issues were then being litigated in the Supreme Court.
His Applications in a Case are repetitious. He has filed some 13 reviews of registrar’s decisions. He has been unsuccessful in any review relating to subpoenas.
He has had one success in relation to a taxation of costs matter. All his applications to set aside orders of Judges, to vary orders made by Judges, that they disqualify themselves have been dismissed and he has filed no less than 4 such applications. There have been multiple oral applications for disqualification made as well before Justice Berman and myself.
All applications seeking adjournment of hearings have been unsuccessful and there have been multiple oral applications made for adjournments.
The 7 Appeals he has filed have been abandoned with one being dismissed.
He writes multiple emails to the Court in lieu of filing application as set out in Wife’s Exhibit 24.
The contravention proceeding he instituted against the wife have been dismissed.
The husband’s applications have been habitual, persistent and without merit.
The husband re-litigates matters that have been finalised, such as filing multiple Applications in a Case to review or vary Justice Berman’s final parenting orders, three in total. All were found to be an abuse of process of the Court being attempts to improperly appeal a Judge’s final order.
He sought that a costs order made by Justice Berman be varied or set aside as it was obtained by fraud, the fraud of Mr Phong. This was an unmeritorious application doomed to failure and was dismissed.
The husband is unable to claim that as he is not a trained lawyer and he falls into error. Justice Pembroke described him as a skilled amateur litigator. He has run complex commercial litigation in the Supreme Court of NSW in which he has been entirely unsuccessful. He has represented himself in the Family Court of Australia. He knows what he is doing and intends to create difficulty for his former wife in having to respond to his voluminous and groundless Applications in a Case and delay the final hearing of her applications.
He has sought to wear down his wife and any Judicial Officer who does not agree with him by his barrage of applications for disqualification and a stay of a decisions pending an appeal, and the appeal is either dismissed or he does not prosecute.
The wife is entitled to protection from her former husband’s harassing and coercive behaving by his misuse of the highly prized right citizens enjoy to invoke the court’s protection of their rights and those of their children at a time of their choosing. This right has unfortunately been abused by the husband, and the wife and children have suffered.
The wife has satisfied the Court that the husband’s proceedings are vexatious within the meaning of the Act.
The pathway Justice Benjamin outlined in Acres is as follows:
a)In accordance with 102QB(1) determine which proceedings constitute vexatious proceedings instituted or conducted in Australian courts or tribunals;
b)If there have been vexatious proceedings, then determine whether such proceedings have been conducted or instituted frequently. In that consideration, there is the ability to have regard to proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal and the person’s overall conduct in such proceedings, including compliance with orders made by the court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted before the commencement of Part XIB of the Act); and,
c)If that threshold is met, then consider whether to exercise the discretion set out in 102QB(2) of the Act and make a vexatious proceedings order. In considering whether to make a vexatious proceedings order, I must consider the scope and nature of the orders sought by the person against whom a vexatious order is sought and made.
I am satisfied the husband’s applications are vexatious, that they have been instituted frequently and habitually, that the husband fails to comply with the Courts directions after filing his applications, such as complying with a timetable for filing and/or appearing to prosecute his claim.
I certify that the preceding two hundred and forty-five (245) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 21 December 2021
SCHEDULE ONE
1. Applications filed by the husband since 2014
1.Application in a Case filed 7 August 2018, amended 24 August 2018, amended again 14 May 2019
a.Seeking orders inter alia that the Supreme Court Proceedings involving the sale of the property at Suburb E to the Phongs be transferred to the Family Court
b.Seeking orders that the transfer of the Suburb E property to the Phongs be set aside or, alternatively, that the proceeds of sale be paid to I Pty Ltd.
c.Ordered: Dismissed by Berman J on 18 June 2019
2.Application in a Case filed 30 August 2019
a.Application for a stay of Justice Berman’s final parent orders made 15 August 2019.
b.Dismissed by Justice Berman on 17 October 2019.
3.Contravention Application filed 17 September 2019
a.In hard copy
b.Dismissed by Senior Registrar Campbell on 13 November 2019
4.Application in a Case filed 17 September 2019
a.Seeking interim parenting orders, and to vary final parenting orders made by Berman J on 15 August 2019 and that Berman J recuse himself.
b.Similarly dismissed by Senior Registrar Campbell on 13 November 2019
5.Application in a Case filed 20 September 2019
a.Seeking a Review of Senior Registrar Campbell’s decision of 18 September 2019
b.Application granted by Justice Loughnan
6.Application in a Case filed 18 December 2019
a.Seeking to have the contravention application filed 18 December 2019 heard, alleging a second contravention by the mother and seeking orders that the children live with the father.
b.On 2 April 2020 the application was stood over pending further order before Justice Henderson noting the father was spending time with the children
c.Stood out of the list by Justice Henderson on 9 July 2021
7.Application in a Case filed 8 January 2020
a.Seeking parenting orders
b.Struck out by Senior Registrar Campbell pursuant to (what was then) rule 24.1 of the Rules (appeal of the final parenting orders was pending)
8.Application in a Case filed 4 February 2020
a.In hard copy
b.Dismissed by Justice Henderson on 2 April 2020 (when all then outstanding interim applications except for the contravention application and wife’s vexatious litigant application were dismissed)
9.Application in a Case filed 10 July 2020
a.Seeking to stay orders made by Justice Henderson on 9 July 2020 issuing a recovery order to lie in the Registry and for the children to live with the father
b.Dismissed by Justice Henderson on 10 July 2020 following ex tempore judgment
10.Application in a Case filed 20 September 2020
a.Seeking a Review of a Registrar’s decision relating to itemised costs assessment
b.Review granted by Justice Henderson on 19 February 2021
11.Application in a Case filed 21 September 2020
a.Seeking to set aside Justice Berman’s orders of 2 August 2019 issuing a costs order to be paid by Mr Scott, alleging such orders were obtained by fraud, seeking Justice Berman’s recusal
b.Application dismissed by Justice Henderson on 26 February 2021
12.Application in a Case filed 24 April 2021
a.Seeking to review and discharge the interim parenting orders, transferral of proceedings to Parramatta
b.Dismissed
13.Application in a Case filed 16 June 2021
a.Seeking Justice Henderson recuse herself from further hearing the matter, and that the proceedings be transferred to Parramatta.
b.Application to have proceedings transferred dismissed by Justice Henderson on 26 July 2021
14.Application in a Case filed 28 July 2021 and amended on 2 August 2021
a.Seeking the final hearing be adjourned following the finalisation of the Supreme Court proceedings, seeking, again, that the matter be transferred to Parramatta and that Justice Henderson recuse herself
b.Dismissed by Justice Henderson in its entirety on 13 August 2021
15.Application in a Case filed 4 August 2021
a.Seeking a stay of a Registrar’s orders of 23 July 2021 that dismissed notices of objection filed by the husband and allowed the wife to view subpoena material.
b.Has not been dealt with yet
16.Application in a Case filed 20 September 2021
a.Seeking a review of Senior Registrar McNamara’s orders of 20 September 2021 relating to viewing subpoena material produced by financial institutions.
b.Dismissed by Justice Henderson on 27 September 2021
17.Application in a Case filed 23 September 2021
a.Seeking a review of Senior Registrar McNamara’s orders of 20 and 22 September 2021 dispensing with the rules for personal service and allowing the wife to view subpoena material from financial institutions
b.Dismissed by Justice Henderson on 27 September 2021
18.Application in a Case filed 24 September 2021
a.Seeking a stay of Justice Henderson’s orders of 13 August 2021 dismissing the husband’s application for disqualification and an adjournment of the final hearing
b.Dismissed by Justice Henderson on 8 October 2021.
19.Oral/email application of 1 October 2021 – to unfreeze bank account improperly frozen by the bank contrary to orders, to stay Justice Henderson’s orders refusing to disqualify herself and adjourn the final hearing, for disclosure from the wife, for the removal of an injunction placed on the property at Suburb MM.
20.Oral/email application of 7 October 2021 for Justice Henderson to disqualify herself from hearing the matter.
2. Appeals filed by the husband since 2014
EAA8/2021 and EAA9/2021
·Filed 25 January 2021
·Application in an Appeal for an extension of time to file an appeal of Justice Henderson’s orders of 9 and10 July 2020
·Outcome: Discontinued
EAA66/2021/EAA67/2021
·Filed 16 June 2021
·Application for extension of time to file appeal orders made by Justice Henderson on 9 and10 July 2020 issuing a recovery order
·Outcome: Application dismissed with costs
EAA126/2019
·Filed 19 November 2019
·Appeal seeking to discharge Justice Berman’s Orders of 23 October 2019 (ordering costs be paid by Mr Scott)
·Outcome: Application dismissed with costs
EAA80/2019
·Application in an Appeal filed 21 October 2019 seeking to reinstate a Notice of Appeal that was deemed abandoned due the husband not filing a draft index to the appeal book in accordance with the rules, no arguable ground of appeal to warrant extension of time.
·Outcome: Application dismissed with costs
EAA29/2021
·Appeal filed 25 March 2021 of Justice Henderson’s orders of 26 February 2021 refusing to set aside/vary Justice Berman’s orders of 2019
·Appeal deemed abandoned on 21 September 2021
NAA6/2021
·Filed 8 September 2021
·Seeking to appeal Justice Henderson’s orders of 13 August 2021 refusing to disqualify herself or adjourn the final hearing
·Appeal ongoing
EAA78/2019
·Filed 30 August 2019. Appeal found to be abandoned, then filed an Application in an Appeal on 9 October 2019 seeking to reinstate the notice of appeal
·Appeal against Justice Berman’s final parenting orders
·Outcome: Dismissed
3. Affidavits filed by or on behalf of the husband since 2014
1.Affidavit of Mr Scott filed 11 July 2014
2.Affidavit of Ms VV filed 11 July 2014
3.Affidavit of Mr WW filed 11 July 2014
4.Affidavit of Ms L filed 11 July 2014
5.Affidavit of Mr Scott filed 11 July 2014
6.Affidavit of Ms XX filed 12 August 2014
7.Affidavit of Mr Scott filed 27 January 2015
8.Affidavit of Mr Scott filed 28 January 2015
9.Two Affidavits of Mr Scott filed 26 May 2015
10.Affidavit of Mr Scott filed 23 June 2015
11.Affidavit of Ms L filed 23 June 2015
12.Affidavit of Mr Scott filed 16 September 2015
13.Affidavit of Mr Scott filed 29 October 2015
14.Affidavit of Mr K Scott filed 5 November 2015
15.Affidavit of Ms Scott filed 5 November 2015
16.Affidavit of Mr Scott filed 6 November 2015
17.Affidavit of Mr YY filed 28 August 2016
18.Affidavit of Mr M filed 29 August 2016
19.Affidavit of Mr Scott filed 23 November 2017
20.Affidavit of Mr Scott filed 7 August 2018
21.Affidaivt of Ms ZZ filed 14 December 2018
22.Affidavit of Mr A Scott filed 11 June 2019
23.Affidavit of Mr Scott filed 30 August 2019
24.Affidavit of Mr A Scott filed 31 August 2019
25.Affidavit of Mr Scott filed 17 September 2019
26.Affidavit of Mr Scott filed 17 September 2019
27.Affidavit of Mr Scott filed 20 September 2019
28.Affidavit of Mr M filed 24 September 2019
29.Affidavit of Mr Scott filed 17 October 2019
30.Affidavit of Mr Scott filed 18 December 2019
31.Affidavit of Mr Scott filed 19 December 2019
32.Affidavit of Mr Scott filed 8 January 2020
33.Affidavit of Mr Scott filed 13 May 2020
34.Affidavit of Mr Scott filed 2 July 2020
35.Affidavit of Mr Scott filed 10 July 2020
36.Affidavit of Mr M filed 25 August 2020
37.Affidavit of Mr Scott filed 11 September 2020
38.Affidavit of Mr Scott filed 15 September 2020
39.Affidavit of Mr M filed 20 September 2020
40.Affidavit of Mr Scott filed 20 September 2020
41.Affidavit of Mr M filed 21 September 2020
42.Two Affidavits of Mr Scott filed 28 September 2020
43.Affidavit of Ms L filed 9 November 2020
44.Affidavit of Mr Scott filed 9 November 2020
45.Affidavit of Mr Scott filed 8 December 2020
46.Affidavit of Mr Scott filed 22 March 2021
47.Affidavit of Mr Scott filed 24 April 2021
48.Affidavit of Mr Scott filed 16 June 2021
49.Affidavit of Mr Scott filed 30 June 2021 x 2
50.Affidavit of Mr Scott filed 19 July 2021
51.Affidavit of Mr Scott filed 28 July 2021 x 3
52.Affidavit of Mr Scott filed 4 August 2021
53.Affidavit of Mr Scott filed 11 August 2021
54.Affidavit of Mr Scott filed 20 September 2021
55.Affidavit of Mr Scott filed 23 September 2021
56.Affidavit of Mr Scott filed 24 September 2021 x4
4. Court appearances since 2014
1.13 August 2014: Directions hearing before Judge Kemp
2.10 October 2014: Interim hearing before Judge Kemp
3.28 May 2015: Directions before Judge Kemp
4.25 June 2015: Directions before Judge Kemp
5.29 October 2015: Directions before Judge Kemp
6.10 November 2015: Directions before Judge Kemp
7.18 March 2016: Directions before Judge Kemp
8.31 August 2016: Directions before Judge Kemp
9.27 October 2016: Case Management Hearing before Registrar George
10.9 December 2016: Directions before Registrar Mordaunt
11.28 August 2017: Judicial Duty List before Registrar Cameron
12.6 November 2017: Judicial Duty List before SR Campbell
13.6 December 2017: Judicial Duty List before Registrar Aitken
14.13 December 2017: Judicial Duty List before Registrar Aitken
15.15 January 2018: First Day LAT before Justice Loughnan
16.6 June 2018: Case Management hearing before Justice Loughnan
17.14 August 2018: Case Management Hearing before Justice Loughnan
18.6 September 2018: CMH before Justice Loughnan
19.9 November 2018: CMH before Justice Loughnan
20.18 December 2018: Interim hearing before Justice Loughnan
21.26 March 2019: CMH before Justice Loughnan
22.15 May 2019: CMH before Justice Loughnan
23.21 May 2019: Judicial Duty List before Registrar McNamara
24.17-21 June 2019: Final hearing before Justice Berman
25.4 October 2019: Interim hearing before Justice Loughnan
26.8 October 2019: Judicial Duty List before justice Berman
27.17 October 2019: Judicial Duty List before Justice Berman
28.13 November 2019: Judicial Duty List before SR Campbell
29.15 January 2020: Judicial Duty List before SR Campbell
30.23 March 2020: Directions before SR Campbell;
31.2 April 2020: Directions before Justice Henderson
32.18 may 2020: Directions before Justice Henderson
33.9 July 2020: Directions before Justice Henderson
34.10 July 2020: Judicial Duty List before Justice Henderson
35.16 September 2020: Registrar duty list before SR Campbell
36.11 November 2020: Registrar duty list before SR Campbell
37.12 November 2020: Registrar duty list before SR Campbell
38.18 November 2020: Directions before Justice Henderson
39.17 February 2021: Directions before Justice Henderson
40.19 February 2021: Interim hearing before Justice Henderson
41.30 March 2021: Registrar duty list before SR Campbell
42.9 July 2021: Interim hearing before Justice Henderson
43.15 July 2021: Interim hearing before justice Henderson
44.21 July 2021: Subpoena hearing before Registrar McNamara
45.26 July 2021: Interim hearing before Justice Henderson
46.2 August 2021: Duty List before Justice Henderson
47.12 August 2021: Interim hearing before Justice Henderson
48.20 September 2021: Directions before SR McNamara
49.27-30 September 2021: Final hearing before Justice Henderson noting Mr Scott only appeared on 30 September 2021 and via phone on 28 September 2021.
50.1 October 2021: Continuation of final hearing
51.7 and 8 October 2021: Continuation of final hearing
5. Judgments delivered since 2014
1.Munayallan & Scott [2014] FCCA 2435
o24 October 2014: Judge Kemp
oInterim parenting orders
2.Munayallan & Scott [2018] FamCA 115
o15 January 2018: Justice Loughnan
oInterim property
3.Munayallan & Scott & Ors [2018] FamCA 1153
o18 December 2018: Justice Loughnan
4.Munayallan & Scott [2019] FamCA 549
o2 August 2019 – Justice Berman
5.Munayallan & Scott (No. 2) [2019] FamCA 676
o15 August 2019: Justice Berman
oFinal parenting orders
6.Scott & Munayallan [2019] FamCAFC 246
oAldridge J: 16 December 2019
oDismissing application to reinstate appeal following husband not filing appeal book in accordance with rules
7.Phong & Scott & Anor [2020] FamCAFC 156
o25 June 2020: Aldridge J
oGranting costs to the respondents (the Phong’s) of an abandoned appeal
8.Munayallan & Scott [2020] FamCA 1141
o10 July 2020 Justice Henderson
oIssuing a recovery order following the father withholding the children
9.Scott & Munayallan [2021] FamCA 79
o26 February 2021: Justice Henderson
oDismissing application seeking to set aside Berman J’s orders
10.Scott & Munayallan (No. 2) [2021] FamCA 184
o21 April 2021: Justice Henderson
oDismissing costs application of Mr Phong
11.Scott & Munayallan [2021] FamCAFC 133
o23 July 2021: Justice Aldridge
oDismissing application in an appeal
12.Scott & Munayallan (No. 3) [2021] FamCA 617
o13 August 2021: Justice Henderson
oDismissing application for disqualification and adjournment
13.Scott & Munayallan (No. 2) [2021] FedCFamC1F 112
oGranting wife’s application for injunctions
14.Scott & Munayallan [2021] FedFFamC1F 104
oGranting wife’s application for interim property settlement and indemnity costs
15.Ex Tempore judgment 27 September 2021 – dismissing husband’s reviews – not settled
16.Ex Tempore judgment – 12 October 2021 - matter proceeding without husband – not settled
17.Ex Tempore judgment – 13 October 2021 – dismissing husband’s subpoena objections – not settled
3
8
0