Lento and Palia

[2010] FamCA 256

FAMILY COURT OF AUSTRALIA

LENTO & PALIA [2010] FamCA 256

FAMILY LAW - PROPERTY - ex parte injunction - allegations against the wife of threats that might result in economic damage - annoyance to family members

Family Law Act 1975 (Cth)

APPLICANT: Mr Lento

RESPONDENT: Ms Palia

FILE NUMBER: SYC 6040 of 2009

DATE DELIVERED: 26 March 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 26 March 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Karras

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. The respondent be forthwith restrained from directly or indirectly making any contact or otherwise communicating with the applicant’s current employer, H Inc (USA) or the applicant’s former employer H Pty Limited (Australia) or any servant, agent, officer or representative of either such entity.

2. The respondent be forthwith restrained from making any contact directly or indirectly or otherwise communicating with any member of the applicant’s family namely:

   2.1.His mother, Mrs Lento (Snr);

   2.2.His brother, Mr E Lento;

   2.3.His sister-in-law, Ms M Lento;

   2.4.His cousin, Mr T;

   2.5.His cousin, Ms K.

3. A copy of these orders may be served upon the wife by electronic means.

4. This matter be listed be adjourned for mention to 1 April 2010 at 10am. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6040 of 2009

MR LENTO

Applicant

And

MS PALIA

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The de facto husband (“the husband”) in this matter, whilst disputing a date of separation as alleged by the de facto wife (“the wife”), (the date he would mean that the Family Law Act would not be applicable), has nonetheless opted in and submitted to the jurisdiction of the Family Court.  The parties have pending applications for final orders for alteration of their property. 

2. The husband makes an ex-parte application in a case for injunctive orders aimed at restraining the wife from contacting or communicating with his employer, or his former employer, or contacting or communicating with various members of his family.

3. The fundamental allegation made by the husband is that on 17 March 2010 the wife made a telephone call to him in which the wife claimed that the husband had been involved in fraudulent activities with his employer.  The husband says that the wife directly threatened that unless he paid an amount of $250,000, which he inferred to be a further amount of $250,000 from what they had already negotiated to settle the matter, she would expose the information that she said that she had on the following day.  In a further telephone conversation the husband says that the wife said to him:

   “I am not attempting to blackmail you, but I do have information on you and I will use it against you.”

4. The husband says that he has referred the matter to the police for criminal investigation.  The husband says ramifications for him, in the event that the wife makes an allegation of this nature to his employer or former employer, is that he would expect that notwithstanding what he says is the falsity of the wife’s allegations, to be dismissed or the subject of ongoing suspicion.  If he loses his employment then he will be unable to continue to reside in America.  If some of the things the husband says that the wife has said to him are accurate, the wife might be happy to have him back in Australia.

5. The other part of the application relates to restraining the wife from contacting family members.  The husband says that his mother has reported to him over the last few weeks that somebody has been making calls and hanging up on her.  I note the husband says prior to the conversation that took place on 17 March 2010, he had received a telephone call where the caller had hung up on him.  Thirty minutes later he was contacted by the wife.  The inference I draw, based on that part of the husband’s evidence, is that it was the wife who was the initial caller who had hung up on him.

6. Based on the evidence that is in the husband’s affidavit, there is grounds for making an ex-parte application granting the orders that could have been sought, and I will do that on the basis I re-list the matter before myself sometime fairly soon.  I also note, of course, that I only have one side of the story. 

7. In relation to making an order on an ex-parte basis I am satisfied that, pursuant to rule 5.12, that a shortening of time for service would not be appropriate on the face of the husband’s material.  There might be a risk that the wife does something precipitous before an order could be made, if she was first served with the application.

8. The husband has given an undertaking as to damages, although it is unclear to me as to what actual damage the wife might be occasioned by the injunctive orders that have been made.  I am otherwise satisfied the orders should be made urgently. 

I certify that the preceding eight (8) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts  

Associate: 

Date:  31.3.2010