Scott & Munayallan (No. 2)

[2021] FedCFamC1F 112

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Scott & Munayallan (No. 2) [2021] FedCFamC1F 112

File number(s):	SYC 59 of 2010
Judgment of:	HENDERSON J
Date of judgment:	29 September 2021
Catchwords:	FAMILY LAW - INJUNCTIONS – Interim application made by the wife for injunctions and other procedural orders including the joining of parties – Where the husband failed to attend the hearing – Protection of wife’s interest in matrimonial assets – Application granted
Division:	Division 1 First Instance
Number of paragraphs:	25
Date of hearing:	29 September 2021
Counsel for the Applicant:	Mr Duc
Solicitor for the Applicant:	Mills Oakley Lawyers
The Respondent:	No appearance

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:	29 SEPTEMBER 2021

THE COURT ORDERS THAT:

1. Leave be granted to the parties to receive electronic copies of all documents produced on subpoena to LL Medical Centre and EE Hospital.
2. The Court will resume for submissions on the issue of costs and the wife’s application for a lump sum payment at 10am tomorrow, 30 September 2021.
3. An order joining I Pty Ltd ACN …, DD Pty Ltd ACN …, CC Pty Ltd ACN … and Ms Scott as parties to the proceedings
4. This matter is stood over to 10am on Thursday 7 October 2021 for part-heard final hearing and for the joined parties specified in orders 5 and 3 to attend Court via Microsoft Teams. If an earlier date is required the Court will accommodate that if at all possible by a party contacting my Associate to arrange an earlier listing date .
5. The husband is ordered to attend Court via Microsoft Teams at 10am on 7 October 2021 and in the event he fails to attend on that occasion the Court will entertain an application to issue an arrest warrant.
6. Ms HH and Mr M, pursuant to subpoena, are ordered to attend Court via Microsoft Teams at 10am on 7 October 2021 to give evidence in these proceedings and in the event they fail to attend on that occasion the Court will entertain an application to issue an arrest warrant.

7.The service of any orders on Mr M be affected by serving same by email to ... or as specified in these orders.

8.The wife serve the husband with a copy of these Orders by email as soon as possible after Court concludes today.

9.The service of these orders on Ms Scott to be effected by emailing her a copy of these Orders to the email address provided by the Respondent pursuant to these Orders.

10.The husband provide to the wife’s solicitor by email to … by 5pm on 29 September 2021 the email addresses, residential addresses and phone numbers of Ms Scott, Ms L, Mr L, Mr M and Mr K Scott.

11.The wife may issue subpoena to Ms Scott, Ms L and Mr L to attend Court via Microsoft Teams to give evidence on 7 October 2021 and service of such Subpoena to be effected by forwarding a copy of the subpoena to the named recipient’s email address as provided by the Respondent pursuant to these orders with the conduct money for those subpoena to be paid by the husband Mr Scott.

12.In the event the husband fails to provide the email address of the above named, the Court may consider service has been effected upon Ms Scott, Ms L and Mr L and Mr M by those subpoena being served upon the husband with a request to him to on forward those subpoena to the named recipients.

13. Leave granted to the wife to file and serve as many further subpoenas for the production of documents and/or attendance at the hearing that she deems appropriate and the Court requests the Registry consider waiving the payment of court filing fees due to the indigency of the wife, with such subpoenas to be returnable by 4pm on any day the wife selects commencing 30 September 2021.

14.The husband and all other parties joined to these proceedings pursuant to Orders herein be hereby restrained by injunction from:

a.the sale, transfer or other dealing in relation to F Street, Suburb MM in the State of New South Wales and described as Folio Identifier … (“the Suburb MM property”); and

b.further encumbering the Suburb MM property.

15.The wife file and serve an undertaking as to damages in relation to the injunctions Ordered herein, within 24 hours.

16.The wife be permitted to lodge a Request at the NSW Land Registry Services in respect of the Suburb MM property for the purpose of registering a sealed copy of these orders on title, pending further order.

17.The service of these orders on the entities joined to these proceedings be effected by emailing ..., namely the entities which have been joined to these proceedings pursuant to Orders herein.

18.An order freezing all bank accounts held by DD Pty Ltd, I Pty Ltd and CC Pty Ltd, or otherwise restraining the husband, Mr Scott, or such entities of which he has control or an interest in from depleting or withdrawing any sums or monies in their respective accounts, subject to any Order of this Court.

19.Any account held in the name of Ms Scott be frozen up to an amount of $1,300,000, otherwise she is free to deal with her accounts in the normal course.

20.The Court will entertain any application to remove the restraints pursuant to these Orders when such application is filed by any party such affected, supported by an application in a case and affidavit, to be heard by the Court as presently constituted if the restraint is sought to be lifted.

21.Any party who has been joined to these proceedings and is restrained from dealing with monies held in various bank accounts may approach the Court in Chambers to have the matter relisted at an earlier date should they so desire.

AND THE COURT NOTES THAT:

1. The husband has failed to attend this hearing via Microsoft Teams on Monday and Wednesday of this week.
2. Ms HH and Mr M were ordered to attend Court pursuant to a subpoena to give evidence today, 29 September 2021, in these proceedings and have failed to appear. The Court is satisfied that they have been served in accordance with the Rules.
3. There is clear evidence that the husband, Mr Scott, may have altered a medical certificate of the LL Medical Centre dated 27 September 2021 and that issue will be addressed at the final hearing which is to recommence at 10am on 7 October 2021.

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 (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings will be stood over to Thursday, 7 October 2021 to resume a final hearing which was to commence this week Monday, 27 September 2021.

2. The proceedings could not commence on Monday.  The husband Mr Scott did not appear, asserting he had had an adverse reaction to a COVID injection which, for reasons that escape the Court, he determined to take on the Friday or Saturday before the commencement of the final hearing, and that he had suffered a mild heart attack.

3. Ultimately, the Court was able to contact Mr Scott and speak to him directly on Tuesday and he told me in open court that he had had an adverse reaction to his second COVID shot, that the hospital had told him – namely, EE Hospital – that he had suffered a mild heart attack, he had elevated enzymes in his bloodstream consistent with a mild heart attack and he was going to be referred to or make an appointment for an angiogram in relation to his heart condition.

4. In those circumstances, I adjourned the proceedings to allow appropriate medical reports to be obtained, namely reports and his records from the LL Medical Centre, a Dr FF, who authored a medical certificate he forwarded to the Court dated 27 September 2021 wherein it said:

   THIS IS TO CERTIFY THAT

   Mr Scott has a medical condition and will be unfit for Court Appearance, Preparation, Work from 27/09/2021 to 30/09/2021 inclusive.

   (Emphasis in original)

5. Further, to obtain records from EE Hospital where Mr Scott said he admitted himself on Sunday due to his concerns about a heart attack and reaction to a COVID vaccine and, from his own lips, to obtain information from his general practitioner at BB Medical Centre.

6. The solicitors of the wife have worked tirelessly, probably 23 hours in 24, to ensure that the relevant subpoenas, requests for information, correspondence, telephone contacts have been made both with EE Hospital, the LL Medical Centre and, in particular, Dr FF and the general practitioner Mr Scott said was his general practitioner.

7. Today, Wednesday, 29 September, the matter resumed to allow this information to be brought to the Court, as the Court was concerned that Mr Scott may have been seriously unwell.  Unfortunately, what has happened is that it has become apparent that the medical certificate Mr Scott forwarded to the Court on 27 September 2021 from Dr FF was not the medical certificate that she authored and that became apparent from the documents produced by that medical centre pursuant to subpoena and tendered in court today. The medical certificate that Dr FF produced and is in the records is as follows:

   THIS IS TO CERTIFY THAT

   Mr Scott has a medical condition and will be unfit for Work from 27/09/2021 to 30/09/2021 inclusive.

   (Emphasis in original)

8. The words “court appearance” underlined, “preparation” underlined and the underlining in the word “work” appear to have been added to the medical certificate produced by Mr Scott on Monday, and this addition was noted by Dr FF in notes of the wife’s lawyers of a conversation with Dr FF. 

9. Further, Mr Scott had again attended the LL Medical Centre on 29 September 2021 and obtained a further medical certificate from yet another doctor, certainly not Dr FF, namely a Dr GG, which says:

   Mr Scott has a medical condition, will be unfit for Work and will be unable to attend court from 27/09/2021 to 1/10/2021 inclusive.

   (Emphasis in original)

   Extending the time in his previous medical certificate until this Friday.  There are significant issues for Mr Scott to answer in relation to the apparent tampering of a medical certificate produced by a medical practitioner. 

10. The notes from EE Hospital were produced, and they have been exhibited in the Court and read by me, and I will mark the LL Medical Centre documents wife’s exhibit 1 and the EE Hospital documents wife’s exhibit 2.

11. From the EE Hospital documents, it is clear Mr Scott certainly admitted himself to the hospital on Sunday evening complaining of dizziness, palpitations, pain in his left side, breathlessness, difficulty breathing and was concerned for his health.  He noted or told the registrar at the hospital that he had had a similar reaction to a COVID vaccination he had a mere three weeks ago and one wonders, in circumstances where Mr Scott said he had an adverse reaction to a COVID vaccination, he would have had another one within a mere three weeks the Friday before a final hearing was to commence on the following Monday.  However that answer will be for another date.

12. He was initially examined; blood tests were taken; he was placed in a room; he was again medically examined. There is no evidence whatsoever in any of the EE Hospital medical notes that Mr Scott had suffered a heart attack, that he had elevated enzymes referable to a suspected heart attack or, as he described it, a mild heart attack, or any reference to returning to the hospital for an angiogram.  In fact, it was fairly clear from reading those notes that his complaints were consistent with an adverse reaction to a COVID vaccination from what the doctors had been told by him. He was prescribed analgesics such as Nurofen and Panadol, told to go home and rest and discharged himself.

13. Again, Mr Scott has much to answer when he does come to Court.  He has not been available today, Wednesday, despite the Court emailing him these exhibits and contacting him by telephone to ensure he had read this evidence, hear what was being said by the wife and respond.

14. Copies of all the documents that have been tendered, being wife’s exhibit 1 and 2, today were forwarded to him as was the wife’s recent annexure to her affidavit, being Commonwealth Bank and Citibank bank accounts in relation to various companies which the wife asserts he is the alter-ego of. It is of grave concern, the lack of truthfulness of Mr Scott in this matter, and he has behaved in a fashion which is an affront to not only his former wife and her lawyers but also the Court. The Court is gravely concerned that Mr Scott’s conduct and attitude has taken a concerning turn whereby there will be great difficulty obtaining from him the reality of any situation.

15. In these circumstances, the wife is justifiably concerned that he has access to significant funds of money contained in various companies:  I Pty Ltd, P Pty Ltd, DD Pty Ltd, KK Business, in their  Commonwealth Bank accounts and NAB accounts, all of which the husband can access.

16. Mr Scott has always maintained that although he may have had something to do with the companies I have just referred to, he no longer does, and people such as Mr M now run those companies as does his mother, Ms Scott, his cousin Ms HH and they are the directors and that he is now no longer involved in those companies.

17. That issue is at the very heart one of the important matters the Court is to determine as this impacts upon the value of the matrimonial pool. The wife asserts the husband’s evidence on this issue is but a ruse and that these companies are, in fact, the alter-ego of her former husband. The evidence filed for this hearing by the wife to support the wife’s concerns and her position is clear.  There have been ongoing proceedings in the Supreme Court, which hopefully will be finalised by the end of the year where, yet again, innocent third parties who had the unfortunate position of trying to buy property off Mr Scott have become embroiled.

18. In every application before the Supreme Court, Mr Scott has failed to convince the Court that he is no longer involved in any of these companies.  Indeed, before Berman J of this Court when this very issue was raised Mr Scott said:

    I am blameless.  It is other people who know what’s going on.  They control it, not me.

19. Berman J found that I Pty Ltd in particular was but the alter-ego of Mr Scott.  The documents produced by the wife today annexed to her affidavit, being Commonwealth Bank accounts, Citibank accounts of these various companies showing Mr M, Ms HH, Ms Scott are, in fact, directors and beneficial owners of the company also reveal a capacity/authority for Mr Scott to access and deal with the bank accounts of those various entities, and he has signed those documents.  It is as clear as can be Mr Scott is still pulling the strings and is well able to deal with moneys in any of these company bank accounts.

20. He has controlled, in the past, the withdrawal of money such that, for example, in June of this year, he attempted to withdraw $1.3 million out of the DD Pty Ltd bank account. The Commonwealth Bank would not permit him to do that as Ms HH was the named person to deal with the account.  He then had her removed within some eight days or so and Mr M became the controller of the account.  Mr M is a director of other companies, including I Pty Ltd and others in this group.  With Mr M’s help, Mr Scott was able to withdraw $1.3 million from this account, and the wife believes this money was transferred to his mother’s account or is being held by his mother in some capacity.  That of itself is sufficient evidence for a court or a judge to form the view that Mr Scott is the alter-ego of these companies.

21. That evidence then leads to the orders that the wife seeks. This Court must act to protect the wife’s interests. There is just shy of $2 million in the Supreme Court which, fortunately, Mr Scott cannot access. However, there is a claim by I Pty Ltd with Mr M being involved, and Ms Scott, which, if successful, would extinguish the entirety of the money in the Supreme Court.  Still the wife’s claim and her entitlement to property is in significant jeopardy.  That hearing is to be dealt with by the Supreme Court on 8 December 2021.

22. However, there are other assets as follows.

23. Going to the balance sheet:

    (1)I Pty Ltd value trust moneys: $1.2 million;

    (2)P Pty Ltd: $15,000;

    (3)DD Pty Ltd:  $309,000.

24. There are significant sums of money available to Mr Scott to deal with and the Court is unclear of the whereabouts of $1.3 million he removed from the DD Pty Ltd account in June of this year.

25. In those circumstances, the Court must issue injunctions, even though parties and Mr Scott are unaware injunctions are being issued.  I will ensure that these parties can have their matter brought back to the Court as soon as they are able to obtain legal advice and have their documents filed, and if not sought sooner, this matter is returnable Thursday, 7 October 2021, when the hearing will resume.  In those circumstances, it is most important the Court acts to protect and preserve what could be regarded on this short analysis of the facts as matrimonial property.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson.

Associate:

Dated:       7 October 2021