Szynon and Szynon

[2009] FamCA 571

FAMILY COURT OF AUSTRALIA

SZYNON & SZYNON [2009] FamCA 571

FAMILY LAW – PROPERTY – Interim – Restraint on travel – Case management

Family Law Act 1975 (Cth)

APPLICANT: Ms Szynon

RESPONDENT: Mr Szynon

FILE NUMBER: SYC 3621 of 2009

DATE DELIVERED: 29 June 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 29 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson SC

SOLICITOR FOR THE APPLICANT: Briggs & Associates

THE RESPONDENT Mr Szynon appeared on his own behalf

Orders

1. The proceedings are adjourned to the Judicial Duty List at 10am on 2 July 2009.

2. The husband is to be personally present at that date and time and remain in the precincts of the Court until excused by the Court.

3. By 4pm on 30 June 2009 the husband is to deliver to the Registry Manager of this Court all current passports in his name, those passports to remain with the Registry Manager until further order of the Court.

4. The husband is restrained from leaving the Commonwealth of Australia until further order.

5. The Australian Federal Police are requested to assist with the implementation of Order 4 above and place the name of the husband (MR SZYNON born … December 1954) on the Airport Watch List in force at all points of international departure from Commonwealth of Australia until further order.

6. Unless the Court otherwise orders Order 5 is to automatically lapse in 12 months from the date of these orders.

7. Leave is granted to the wife to issue subpoena to produce documents returnable at 10am on 2 July 2009 to:

   a)St George Bank limited to any account in the name of the husband alone;

   b)Commonwealth Bank of Australia limited to trading accounts in the name of P Company;

   c)Mr Grant Pritchard of Pritchard Lawyers in relation to his file relating to the settlement of the parties’ business which completed on or about 5 June 2009 including but not limited to any memorandum of instructions in relation to that sale and any documents in relation to the settlement of the proceeds.

8. Leave is granted in Order 7 on the basis that subpoenas are served by facsimile not later than 4pm today.

9. Each subpoena is to be accompanied by a letter indicating the subpoenas are issued on short notice and that the penalty provisions in relation to compliance will not be pressed in relation to these subpoenas.

10. The husband is to file and serve a Response to the Application for Final Orders, a Response, if any, to the Application in a Case filed 19 June, a Financial Statement and any Affidavits on which he seeks to rely as soon as practicable.

IT IS NOTED that the Husband’s address for service is …, NSW

IT IS NOTED that publication of this judgment under the pseudonym Szynon & Szynon is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3621  of 2009

MS SZYNON

Applicant

And

MR SZYNON

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a claim for settlement of property.  The proceedings were commenced by an application of the wife filed on 19 June 2009. The matter has been before me on a couple of occasions, the first of them being 19 June 2009. On that date I made some orders on an ex parte basis in circumstances where the wife gave evidence in relation to the risk of loss of matrimonial funds.

2. The case involves the wife who is 48 years of age and the husband who is 54.  They were married in 1983 and separated in 2008. They have three children, a son and two daughters, who are 21, 18 and 15 years of age, respectively.  The family business was a food supplier, being W Distribution which was owned and operated by a company, P Pty Ltd. Each of the parties owned shares in that company and both were directors. The husband contends that the wife resigned as a director.  I think there may be some controversy in relation to whether she did that or not.  P Pty Ltd was established in 1990.

3. There were two main assets of the marriage, a property at B and the business.  Both were sold recently. There was a net debt of $92,000 on the sale of the house. P Pty Ltd settled the sale of its business in June 2009, the wife thinks the sale was for a price in excess of $2.8 million.  There was an agreement she says between the parties that there would be a sharing of the proceeds and some moneys would be applied to relevant debts.  The wife's evidence is that the husband misled her about the settlement proceeding on 5 June 2009 and she only found out after that date, that the settlement had occurred.  She had a communication with him she said a few days later and the husband told her that he did not trust her, that he was keeping the proceeds of sale and offered to pay her $1000 a week. There is an arrangement associated with the sale whereby the parties would continue to manage aspects of the business on behalf of the purchasers. The wife says that the agreement resulted in the husband attending the business premises five days a week and the wife two days a week.  She says that in subsequent conversations the husband variously threatened to send the proceeds of sale to Germany and to put the money in the name of another person. The wife caused inquiries to be made and discovered that some moneys were applied to the business overdraft, to the $92,000 shortfall, to payments to solicitors Matthew Folbigg of $1662 and Prichard Lawyers of $5929, and $2.8 million was paid to the husband.  A payment of $700,000 was traced I understand into an account of the husband.  As at 11 June 2009 there was $622,000 in that account. The wife fears that the balance is less than that now. As to the remaining amount of about $2 million, the wife was not aware of the fate of those funds. 

4. The matter came back before me on 24 June 2009. That was the return date of the urgent orders I made. Ms Briggs appeared for the wife and there was no appearance for the husband. The matter was then adjourned to today's date.  Today the wife appears with legal representation. The husband appears but without legal representation. He says to the Court that he would like an adjournment of the proceedings; that he is feeling very unwell; that he is under the care of a Psychiatrist, although he last saw his Psychiatrist two weeks ago and the Psychiatrist is not back in the country until a date in August. The husband says that he has spoken to a solicitor, a Ms Fabiani and that he has had some advice from her. He says that he could not contact her today despite numerous phone calls. 

5. An application was made on behalf of the wife for the husband to be orally examined in relation to the fate of funds. I was told that request was made because the husband had made inconsistent statements to the wife and the wife's solicitors today. Firstly the husband told Ms Briggs, the wife's solicitor, that he had gambled and given away the money. The husband agrees that is what he told Ms Briggs. Then it is asserted that the husband had a discussion with his wife and told her that in fact he had not given away or gambled the money and that if she agreed to an adjournment of the proceedings for three months and he trusted her, then the moneys would be available. The husband absolutely denies the thrust of that conversation. 

6. In the circumstances I allowed the husband to be examined. He was sworn in and gave evidence broadly to the effect that a cheque was paid to him out of the settlement of the sale of the business for about $2.8 million.  He paid that into a St George account.  He transferred about $800,000 into a company account with the Commonwealth Bank. He says that on a day he does not remember he attended the Market Street branch of the St George Bank, albeit that his account is with a suburban branch. He thinks he withdrew $2 million in cash. He is not sure, but he thinks he was collected from the street that day and taken to a club.  He does not now remember giving the money or any part of it away to anybody. He says that he knows, on a basis other than a recollection of the precise event, that he has gambled away the balance of the funds.  He does not know what form of gambling that was. He does not know the address of the premises to which he was taken. His evidence is that the money is gone.

7. Most of his evidence today was given under a certificate under section 128 of the Evidence Act. It has been explained to him, quite correctly by Senior Counsel, that the certificate will not protect him in relation to perjury in respect of his evidence today. The certificate does the job that I set out for the husband and that is that it prevents his evidence today being used against him. The certificate does not protect him from any other action the authorities might take. 

8. As a result of that evidence the wife seeks that I require the husband to surrender his passport, place his name on the PASS (s)ystem at points of international departure from Australia.  That last order requires that I restrain the husband from leaving Australia and that I request the police to assist in that exercise.  The husband has told the Court today that he does not have a need to travel in the short term and makes the obvious point that he does not have the wherewithal to do so. Thus there is no basis for refusing those applications.

9. I am asked to permit subpoenas to issue on short notice and I am asked to bring the matter back on Thursday of this week. The adjourned date is a matter of controversy. The husband is afraid that the adjournment will interfere with the collateral agreement struck with the purchaser of the business involving attendance at the business premises each day. He says that he has told the purchaser something about today but he is afraid that the purchaser might seek to renege on the sale agreement. He is afraid that that might cause the parties financial damage.   The hypocrisy of that is obvious in the circumstances where it is his case that he has wasted $2 million.

10. In that regard, I am told by Senior Counsel that the undertaking the wife gave as to damages on 19 June 2009 continues in relation to the orders made today.  As I said to the husband during the course of the day, he is always free to have negotiations, preferably through a solicitor, with the wife's solicitors in relation to any important issue. They could agree about any further payments that need to be made. They could even reach an agreement in relation to a further adjournment and can approach my Associate to make those arrangements if they would like. The husband is free to bring the matter to Court himself on an application to seek some specific order. 

11. The husband is aggrieved about the short notice he has had in respect of the proceedings. That is not a relevant consideration because he should have brought the matter to court. Mr Richardson's client is the wrong applicant.  The husband has taken matters into his own hands. Only he had prior notice of any of the relevant events. Only he could bring the matter to Court in a timely way and he did not do it. The husband has apparently robbed us of something like three weeks worth of notice.

12. The husband has expressed concern in relation to his health and we came to a point today where he was very worried about that. I indicated to him that we would do something about it if that was needed. I offered to call an ambulance for him. It might be that he would be sensible to look to some medical assistance urgently, if his Psychiatrist is not available. There may be issues that his solicitor might need to take up with him in relation to how comfortable the solicitor is in taking instructions from the husband. That is something that might arise when the husband catches up with Ms Fabiani. 

13. I am going to order that the husband be here at 10 o'clock on Thursday of this week.  He needs to be here personally.  But that is not to say that he should not have legal representation. If ever a person needed legal representation, it is this gentleman.    

I certify that the preceding thirteen ((13) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate:

Date:  2 July 2009