FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pirani & Pirani [2023] FedCFamC1F 463
File number(s): SYC 3987 of 2023 Judgment of: SCHONELL J Date of judgment: 7 June 2023 Catchwords: FAMILY LAW – INJUNCTIONS – Ex parte application – Where the wife sought orders on an ex parte basis in relation to both parenting and financial matters – Where there are various entities that are parties to the proceedings which the husband has an interest in or is in control of – Where the wife contends that the husband has made threats to take the children from her – Where the wife contends that the husband has made threats to deal with the assets such that her application before the Court would be imperilled – Where the Court is satisfied that it is necessary to make ex parte orders – Ex parte orders made – Orders made for the wife to direct service upon the respondents and for the matter to come back to Court. Legislation: Family Law Act 1975 (Cth) s 114
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.34, 5.11
Cases cited: Ansah v Ansah [1977] 2 All ER 638
Sieling & Sieling (1979) FLC 90-627; [1979] FamCA 23
Stowe and Stowe (1981) FLC 91-027; [1980] FamCA 92
Tsiang & Wu and Ors (2019) FLC 93-911; [2019] FamCAFC 128
Division: Division 1 First Instance Number of paragraphs: 46 Date of hearing: 7 June 2023 Place: Sydney Counsel for the Applicant: Mr Givney Solicitor for the Applicant: New South Lawyers The Respondents: Did not participate ORDERS
SYC 3987 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PIRANI
Applicant
AND: MR PIRANI
First Respondent
B PTY LTD
Second Respondent
C PTY LTD (and others named in the Schedule)
Third Respondent
order made by:
SCHONELL J
DATE OF ORDER:
7 JUNE 2023
THE COURT ORDERS THAT:
1.Orders are made in accordance with paragraphs 1, 2, 5, 6, 7, 8, 9, 12.1, 13, 14, 15, 19, 20, 21, 22, 23, 24, 25, 31, 32, 33, and 34 (as amended) of that part of the Initiating Application filed on 5 June 2023 under the heading “Urgent Ex parte Orders” as set out hereunder:
URGENT EX PARTE ORDERS
PROCEDURAL
1.Leave be granted to the Wife to rely upon her Affidavit sworn 5 June 2023 notwithstanding that such Affidavit exceeds 25 pages in length and has more than 10 annexures.
2.Leave be granted to the Wife to proceed with her Application on an ex parte basis notwithstanding non-compliance with the rules relating to pre-action procedures.
…
PARENTING
5.The children [X] born [2013], [Y] born [2015] and [Z] born [2018] [the Children] shall live with the Wife.
6. The Wife has sole parental responsibility of the Children.
…
FINANCIAL
7.The Wife be granted sole and exclusive occupation of the property situate at and known as [F Street, Suburb G] [the [Suburb G] Property].
8.The Husband must pay all mortgage…
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- AGLC
- Pirani & Pirani [2023] FedCFamC1F 463
- Case
- [2023] FedCFamC1F 463
- Decision Date
CaseChat Overview and Summary
Pirani & Pirani involved a wife seeking financial adjustment in the Family Court of Australia. The wife, who had been in a relationship with the husband for 11 years and had three children with him, alleged that the husband had made threats to harm her, remove the children from her care, and dissipate assets. The husband was currently residing in Country P and had not yet responded to the proceedings. The wife argued that she had been the primary homemaker and parent during the relationship and had made significant contributions to the husband's business. The court had to decide whether to grant ex parte orders for the wife's application for financial adjustment, considering the husband's threats and the potential for prejudice to him and the corporate entities he controlled. The wife had provided an undertaking as to damages.
The legal issues before the court included whether the wife had established grounds for the court to grant ex parte orders and whether such orders would cause undue prejudice to the husband and the entities in question. The court was also required to determine the appropriate measures to mitigate any potential prejudice. The court considered the wife's evidence of the husband's threats and the fact that he had not yet had an opportunity to respond to the proceedings. The court was satisfied that the wife had made out a prima facie case for financial adjustment and that it was necessary to make ex parte orders to protect the wife and the children.
The court determined that it was necessary to make ex parte orders for the wife's application for financial adjustment, given the husband's threats and the wife's contributions to the relationship. The court was conscious of the potential for prejudice to the husband and the entities he controlled but was satisfied that the measures taken to mitigate such prejudice were appropriate. The court ordered that service be effected on the husband via the email addresses provided by the wife by midday the next day and that the matter return before the court on a specified date. The court also noted the wife's undertaking as to damages and the need for the matter to be heard expeditiously.
In summary, the court granted the wife's application for ex parte orders for financial adjustment, recognising the husband's threats and the wife's contributions to the relationship. The court ordered service on the husband via email and set a date for the matter to return before the court. The wife provided an undertaking as to damages, and the court noted the need for the matter to be heard promptly.
The legal issues before the court included whether the wife had established grounds for the court to grant ex parte orders and whether such orders would cause undue prejudice to the husband and the entities in question. The court was also required to determine the appropriate measures to mitigate any potential prejudice. The court considered the wife's evidence of the husband's threats and the fact that he had not yet had an opportunity to respond to the proceedings. The court was satisfied that the wife had made out a prima facie case for financial adjustment and that it was necessary to make ex parte orders to protect the wife and the children.
The court determined that it was necessary to make ex parte orders for the wife's application for financial adjustment, given the husband's threats and the wife's contributions to the relationship. The court was conscious of the potential for prejudice to the husband and the entities he controlled but was satisfied that the measures taken to mitigate such prejudice were appropriate. The court ordered that service be effected on the husband via the email addresses provided by the wife by midday the next day and that the matter return before the court on a specified date. The court also noted the wife's undertaking as to damages and the need for the matter to be heard expeditiously.
In summary, the court granted the wife's application for ex parte orders for financial adjustment, recognising the husband's threats and the wife's contributions to the relationship. The court ordered service on the husband via email and set a date for the matter to return before the court. The wife provided an undertaking as to damages, and the court noted the need for the matter to be heard promptly.
Orders
Orders of the court
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Background
Background to the litigation
The matter is further complicated by the fact that the husband currently is in Country P and the wife understands that it is possible that he may not return to Australia in circumstances where his daughter from a previous relationship has been charged with criminal offences. The wife gives evidence that the New South Wales Crime Commission “raided” the parties’ home.BACKGROUND The husband was born in 1968 and is currently 55 years of age. The wife was born in 1987 and is currently 35 years of age. The parties commenced living together in 2012 and were married in 2013. The parties separated in or about February 2023. There are three children of the marriage who are respectively aged 9, 7 and 4 years. The wife contends that the husband has substantial financial interests in Australia and Country P. The wife contends that during the course of the relationship she was the primary homemaker and parent in relation to the children and that she made various contributions in support of the business conducted by the husband. The wife contends that the husband has made threats to her during the course of their relationship and, in particular, in the period since the parties commenced having relationship difficulties. The wife gives evidence that approximately five years ago the husband said to her words to the effect of “[i]f you ever leave me you’ll get nothing in [Country P]” (wife’s affidavit, paragraph 25). The wife contends that in or about 2019 the parties’ relationship began to deteriorate. The wife contends that in late January/early February 2023, the husband, who was then in Country P, said to her words to the following effect: “if you don’t return to [Country P] will make life miserable for you and your [c]hildren”. The wife then said to the husband that “the marriage is over and that we are separating” (wife’s affidavit, paragraph 34). The wife says that the husband has repeatedly said to her words to the effect of “[c]ome to [Country P] and you will live like a queen. Stay in Australia and you will have nothing” (wife’s affidavit, paragraph 35). The wife further says that since early 2023, the husband has employed a private investigator and that she has seen a number of men following her around and taking photographs of her without her consent. She says that the husband has called her and sent her voice messages on WhatsApp threatening to “kill [her] and steal the [c]hildren” (wife’s affidavit, paragraph 37.5). She further says that on an occasion around Easter Sunday, the husband said to her:37.6… I will get my people to take the [c]hildren away from you and bring them to [Country P]. You cannot take care of the children. You are just a lazy slut with mental health issues. She also says that on an occasion on or around mid-April he said to her, “I will lock you and your [c]hildren out of my house. If you want to continue staying at my house then you must apologise to me and stop this nonsense” (wife’s affidavit, paragraph 37.7).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The wife in her affidavit and in the proposed orders sets out various email addresses for the purposes of effecting service on the husband (r 5.11(b)(x)).CONCLUSION The wife has before the Court an undetermined application for financial adjustment under s 79 of the Act. The wife gives evidence of having made both parenting and non-financial contributions during the course of the parties over 11 year relationship. I am also satisfied for the purposes of this application only and, in circumstances where I have not as yet heard from the husband, that the wife has established that the husband has made threats to harm her, to remove the children from her care, and to dissipate and/or remove assets such that her application for property adjustment would be imperilled. I am satisfied that it is necessary to make ex parte orders but I am also conscious of the fact that such orders may have the effect of causing prejudice to the husband and the corporate entities in which he has an interest in or controls. I note that the wife gives an undertaking as to damages. As the husband and the various entities the subject of the orders have not had notice of the proceedings and have not had an opportunity to put before the Court evidence as to any prejudice occasioned to them by the making of the orders or whether such orders are even necessary, I need to ensure that the matter comes back before the Court as expeditiously as possible. I am satisfied that the orders that I make directing service upon the various email addresses identified in the orders by midday tomorrow and bringing the matter back before the Court on Friday 9 June 2022 mitigates, to the extent possible, any prejudice occasioned to the husband and the entities in circumstances where the husband is presently outside the jurisdiction.
Ratio Decidendi
Legal Principle Established
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