Siatris and Siatris & Ors

[2013] FamCA 476

FAMILY COURT OF AUSTRALIA

SIATRIS & SIATRIS AND ORS [2013] FamCA 476

FAMILY LAW ─ APPROPRIATE FORUM  ─ Where the former matrimonial home of the parties has been sold ─ Where the husband belonged to a superannuation fund associated with his employment ─ Where there is an issue as to whether under a clause of the trust deed establishing the superannuation fund, the employer can recover the entirety of the husband’s interest in superannuation with that fund as a result of the husband’s fraud ─ Where there are simultaneous proceedings in the New South Wales Supreme Court and in this court ─ Where the issue to be determined is whether the husband’s interest in the remaining one half of the net proceeds of sale of the former matrimonial home should be properly paid to the employer or it should not ─ Where the appropriate forum for these proceedings is the New South Wales Supreme Court

Family Law Act 1975 (Cth)

APPLICANT: Ms Siatris

1st RESPONDENT: Mr Siatris

2nd RESPONDENT: Business B1, Business B2, Business B3

FILE NUMBER: SYC 5680 of 2007

DATE DELIVERED: 11 June 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 11 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell

SOLICITOR FOR THE APPLICANT: Rossi Simicic Lawyers

SOLICITOR FOR THE 1ST RESPONDENT: Mr Ferney (agent)
Johnson Horsley Lawyers

COUNSEL FOR THE 2ND RESPONDENT: Mr Batey

SOLICITOR FOR THE 2ND RESPONDENT: Colin Biggers & Paisley

TRUSTEE: Ms Hunt

Orders

1. The proceedings not be listed for final hearing at this time.

2. These proceedings are stood over generally with liberty to either of the parties to restore the proceedings to the list when the issue of the establishment of the pool of property is resolved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Siatris & Siatris and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5680 of 2007

Ms Siatris

Applicant

And

Mr Siatris

Respondent

And

Business B1, Business B2, Business B3

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. These reasons are based on an ex tempore judgment. In order to better explain the decision changes have been made to the oral judgment. Relevant background had been added and the language has been changed.

2. These proceedings have been in the list on a number of occasions. There are property settlement proceedings on foot between husband and wife. However, I am told that although no final orders have been made, there is no longer a controversy between them.

3. There are issues arising out of fraud proceedings taken against the husband by his former employer. The employer, the parties and the trustee of the employer’s superannuation fund, to which the husband belongs, believe those matters should be transferred from the NSW Supreme Court to this Court. I disagree.

Background

1. As I understand the background, the husband’s employer took proceedings in the New South Wales Supreme Court in relation to a fraud committed by the husband as an employee and judgment was given in the Supreme Court against the husband for something of the order of five million Euros.

2. The former matrimonial home of the parties has been sold. I understand that as a result of an order or agreement in the Supreme Court proceedings, one half of the net proceeds of sale were paid to the wife and the remaining one half is held to abide the outcome of those proceedings. There is a dispute between the employer and the parties or between the employer and the wife as to whether the remaining half of the proceeds should be paid to the employer. 

3. The husband belonged to a superannuation fund associated with his employment. There is an issue as to whether under the conditions of the fund, the employer can recover the entirety of the husband’s superannuation interest in that fund as a result of his fraud. 

4. At the moment there are simultaneous proceedings in the New South Wales Supreme Court and in this court. The issue arises as to the appropriate forum for those controversies.

5. I have expressed on two previous occasions, without being able to make any headway with the parties, my view that the issues associated with the fraud are not properly matters for the Family Court of Australia. There is no apparent dispute between the husband and wife. There may be little or no net property of the parties and in that event there would be little or no need for a property settlement.

6. Where there is no relevant dispute within the natural jurisdiction of this Court, it is a nonsense to bring an unrelated controversy here. The issues can be dealt with elsewhere.

7. It is hard to see there being a significant controversy in relation to the superannuation, either there is a provision under the relevant trust deed whereby the employer can recover, or not. That does not require an exercise of power under the Family Law Act or an exercise of power associated with such an exercise. Either the husband’s interest in the remaining one half of the net proceeds of sale of the former matrimonial home should be properly paid to the employer because of his fraud or it should not. In my view, the appropriate forum for these proceedings is the New South Wales Supreme Court.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 11 June 2013.

Associate: 

Date: