Pirani & Pirani
[2023] FedCFamC1F 463
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 instalments as and when they fall due in respect of the mortgage secured upon the [Suburb G] Property to the Westpac Banking Corporation [Westpac Mortgage].
9.The Husband pending final determination of these proceedings or further order is to pay outgoings in relation to the [Suburb G] Property as and when they fall due including the following:
9.1. council rates;
9.2. insurances;
9.3 water rates;
9.4 electricity and gas charges.
…
12. The Husband must within 48 hours of service of these Orders:
12.1.do all acts and things required and sign all documents necessary to transfer, or cause the transfer, of ownership to the Wife of the mobile telephone number […] and pay any outstanding bills, charges or invoices relating to the mobile telephone number and provide evidence of such payment to the Wife. To give effect to this Order, the Husband be restrained from doing any act or thing or causing or permitting any third party to do any act or thing, including but not confined to, disposal, disconnection, cancellation or transfer to a third party of the mobile telephone number; and
12.2.(omitted)
…
OTHER ORDERS
Restraints
13.The Husband personally and by his servants or agents is restrained from:-
13.1.Interfering with the Wife’s sole use and occupation of the [Suburb G] Property;
13.2.Causing or requiring any person or entity to interfere with the Wife’s sole use and occupation of the [Suburb G] Property;
13.3.Selling, transferring, encumbering or in any way dealing with the [Suburb G] Property;
13.4.Enforcing or causing any entity to enforce the agreement allegedly secured by a Caveat by [B Pty Ltd]; registered against the title of the [Suburb G] Property [in early] 2023 with dealing number … [the [B Pty Ltd] Caveat];
13.5.Causing, directing or requesting any person or entity to enforce the agreement allegedly secured by a Caveat by [H Pty Ltd] registered against the title of the [Suburb G] Property [in early] 2023 with dealing number […] [the [H Pty Ltd] Caveat];
13.6.enforcing or causing any entity to enforce the agreement allegedly secured by a mortgage by [B Pty Ltd] registered against the title of the [Suburb G] Property [in mid-2023] with dealing number […] [the [B Pty Ltd] Mortgage]; and
13.7.stalking or causing, directing or requesting any person to stalk or undertake surveillance of the Wife and/or the Children.
14.The Husband and [B Pty Ltd] are restrained from doing any act or thing or causing any act or thing to demand payment or exercise any mortgagees rights in respect of the [B Pty Ltd] Mortgage.
15.The Husband is otherwise restrained from the date of these Orders until 4.00 pm on the day that the Wife's Interim Application is heard from:
15.1.transferring any greater sum than $50,000.00 in aggregate, and/or any property to the value of $50,000.00 from any bank account or funds held with any institution or company either owned or controlled by the Husband in Australia to overseas including but not limited to each of the companies listed in Schedule 1 to these Orders;
15.2.doing any act or thing including directing any other person or entity to do any act or thing that would cause the reduction of the asset pool as at the date of these Orders save for any act or thing that would be required to be carried out in the usual course of business;
15.3.selling any real property either owned in his name, [B Pty Ltd] or company either owned or controlled by the Husband in Australia including but not limited to each of the companies listed in Schedule 1 to these Orders unless no less than 3 business days written notice is provided to the Wife; and
15.4.in the event of a sale of a property or properties each of the Husband and/or the company are restrained from dealing with the proceeds of sale other than to cause them to be deposited to an interest bearing controlled monies account conducted in the name of the solicitors for the Wife as trustee for the Wife, the Husband and the respective company which owns the property and or properties and where such monies shall remain until further Order.
…
19.The Husband and [D1 Pty Ltd] are restrained from doing any act or thing to demand payment or exercise any mortgagees rights in respect of the [Suburb J] Property.
20.The Husband is restrained from assaulting, molesting, harassing or otherwise interfering with the Wife and the Children.
21.The Husband is restrained from directing any person to assault, molest, harass or otherwise interfere with the Wife and the Children.
22.The Husband shall forthwith direct any third party whom the Husband has requested, directed or contracted to follow and/or report on the Wife to the Husband to cease such activity forthwith.
23.The Husband is restrained from directing, requesting or contracting with any third party or entity to follow and/or otherwise report to the Husband as to the activities of the Wife.
24.The Husband be hereby restrained from:
24.1.from sending messages to the Wife via the Children or any of them;
24.2.engaging in any conduct to intimidate the Wife;
24.3.approaching the Wife's place of work or any other place the Husband becomes aware the Wife is present other than for the purpose of collecting, spending time with the Children, attend any activities relating to any of the Children or as per these Orders or returning the Children, following time with that parent, without first obtaining the Wife's consent in writing;
24.4.denigrating the Children or allowing any other person to do so;
24.5.denigrating the Wife, her partner or the Wife's family member or members of the Wife's household in the presence of or hearing of the Children;
24.6.from posting negative, abusive and/or derogatory comments of the Wife and/or any of the Children on public social media; and
24.7.discussing the Family Court proceedings or care arrangements of the Children in the presence of or ear-shot of any of the Children.
25.The Husband is restrained from removing or attempting to remove the Children from the Commonwealth of Australia or otherwise requesting or directing any person to so remove attempt or remove the Children from the Commonwealth of Australia
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the Children [[X] (a female) born [2013], [Y] (a male) born [2015] and [Z] (a male) born [2018]] on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watchlist for the said period, until the Court orders its removal, or with consent of all parties.
…
Service
31.Pursuant to Rule 2.34 of the Federal Circuit and Family Court of Australia (Family Law rules) 2021 (Cth) [the Rules], all rules requiring personal service upon the Husband are dispensed with.
32.By midday, 8 June 2023, the Wife shall serve sealed copies of:
32.1. all orders made in these proceedings;
32.2. the documents filed by the Wife; and
32.3.the brochure prepared by the court pursuant to section 12F of the Family Law Act 1975.
33. Service upon the Husband shall be effected by:-
33.1.forwarding the Initiating Application and ancillary documents by email to the following addresses:
33.1.1.[…]
33.1.2.[…]
33.1.3.[…]
33.1.4.[…]
33.1.5.[…]
34.Service upon the Second, Third, Fourth, Fifth and Sixth Respondents shall be affected by forwarding a sealed copy of these Orders, the Wife’s Initiating Application, the Wife's Affidavit and Financial Statement by email to the email addresses set out in Orders 33.1.1 to 33.1.4. and subsequently by ordinary pre-paid post upon the registered offices of those companies.
2.Until 4.00 pm on Friday, 9 June 2023, orders are made in accordance with paragraphs 17 and 18 of that part of the Initiating Application filed on 5 June 2023 under the heading “Urgent Ex parte Orders” as set out hereunder:
17.The Husband and [D2 Pty Ltd] are restrained from further encumbering the property situate at and known as [K Street, Suburb L] being the property comprised in […] and in the event of a sale of the said property each of the Husband and [D2 Pty Ltd] are restrained from dealing with the proceeds of sale other than to cause them to be deposited to an interest bearing controlled monies account conducted in the name of the solicitors for the Wife as trustee for [D2 Pty Ltd], Husband and the Wife where such monies shall remain until further order.
18.The Husband and [E Pty Ltd] are restrained from further encumbering the property situate at [1 M Street, Suburb N], [2 M Street, Suburb N], [1 O Street, Suburb N], [3 M Street, Suburb N], [4 M Street, Suburb N], [5 M Street, Suburb N], [6 M Street, Suburb N], [2 O Street, Suburb N], [3 O Street, Suburb N], [4 O Street, Suburb N] and [5 O Street, Suburb N] being the property comprised in […] and in the event of a sale of the said property or properties, each of the Husband and [E Pty Ltd] are restrained from dealing with the proceeds of sale other than to cause them to be deposited to an interest bearing controlled monies account conducted in the name of the solicitors for the Wife as trustee for the Husband, Wife and [E Pty Ltd] where such monies shall remain until further order.
3.The matter is listed for an in person interim hearing before me at 9.30 am on Friday, 9 June 2023.
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 Pirani & Pirani has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
On 6 June 2023, the applicant wife (“the wife”) filed an Initiating Application supported by an affidavit and Financial Statement. The Initiating Application seeks orders on an ex parte basis in relation to both financial and parenting matters.
There are a number of named respondents to the application including the first respondent husband (“the husband”) and a number of companies which, it is contended by the wife, are controlled by him.
The wife contends that she has been subjected to family violence by the husband including the making of threats not only to harm her, but to deal with his assets in a way such as to ensure that she would not be able to receive her proper entitlement under the Family Law Act 1975 (Cth) (“the Act”). The wife contends that to protect herself and her entitlement, it is necessary that the Court make orders on an ex parte basis.
The wife contends that the matrimonial pool has a value of approximately a billion dollars and that the proceedings involve complicated issues of law and fact including the intersection of family law, insolvency and possibly criminal proceedings.
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).
The wife contends in her affidavit that the husband would repeatedly call her a “slut” in the presence of the children. She contends that he has been physically and emotionally abusive towards her including saying to the children that she was “a lazy slut who sleeps all day” (wife’s affidavit, paragraph 128) and accusing her of infidelity (wife’s affidavit, paragraph 130). She also contends that she has been physically assaulted by the husband, including being punched and slapped on the face (wife’s affidavit, paragraphs 132 and 137).
The wife says that in or about February 2023, the husband said to her:
146.… “I am worth $1.7 billion dollars and I can create $1.8 billion in debt, if you try to be smart I will give you all the debts, I will destroy everything if you don’t want to do what I tell you.”
The wife contends that on 13 May 2023, she received a voice message from the husband which said words to the following effect:
160.… “Very closely, every move and every word til you come back to me or we die, which one you choose, you're dreaming.”
(As per the original)
The wife contends that on 15 May 2023, she received a voice message from the husband which said words to the following effect:
166.… you’re the good person? I want to fucking destroy you if you don’t fucking fix it, I promise you, I promise you, you will be destroyed, you know how destroyed, destroyed because I’ve got a porn movie on you, porn, porn, porn movie I have the whole fucking setup, I’ve got you on film having sex.”
(As per the original)
The wife contends that on 16 May 2023, she received a voice message from the husband in words to the following effect:
175. …
“I will not delete anything send it to whoever you want to send it to the police, to God, to him, whoever, I will not return from the dead, I am going to kill both of you, either you leave this man or I am going to kill both of you, I sent it to the police, either you stay away from this cheater, drug dealer, child molester, to protect my kids or I am going to will kill you both, I promise fuck my dead I am going to kill you both and send this to the police again if you don’t stay away from him.”
(As per the original)
The wife contends that the husband has carried out some of the various threats that he made to her. In that respect, she asserts that Motor Vehicle 1, which the husband purchased for her as a birthday present, was removed whilst the car was in her possession. She say that she and the children were having dinner and returned to find the motor vehicle had been removed. She contends that she and the children were denied access to the former matrimonial home and that it was only through the intervention of the police that she was able to return.
The wife contends that during the course of the relationship, the husband provided her with a wage of $10,000 per month as well as having unrestricted access to a debit card provided by the husband. She also says that the husband would give her cash of between $5,000 and $10,000 at least once per week. The wife estimates that her weekly personal expenses for herself and the children total approximately $33,000 per week. She contends that she is currently unable to support herself from her own resources.
She contends that the husband stopped providing her any income as at early 2023 and in mid‑2023, he blocked access to the debit card that the husband had previously provided for her.
The wife gives evidence that in or about late May 2023, the husband provided a vehicle to the wife to use conditional upon the wife signing a document that recorded that a company controlled by the husband “reserves the right to locate and/or to re-acquire the vehicle … at [its] discretion” (wife’s affidavit, paragraph 89) .
The wife gives evidence that she is concerned that the husband will dissipate assets and seek to remove property from Australia.
In relation to a property at Suburb L, she says:
50. [D2 Pty Ltd], being a company of the [B Group], purchased the property at [K Street], [Suburb L] in 2015, which was comprised in four folio identifiers being […] (K Street) for $32,000,000.00, which is presently on the market for sale and contracts for sale of land have been exchanged [in mid] 2023. [In mid] 2023, the [Q Limited], as Caveator, registered a caveat over the [K Street] Property, claiming an interest by virtue of a contract for sale of land dated [mid] 2023. The property comprises [over 1.5] hectares in area. [In late] 2022, a mortgage in favour of [R Limited], dealing number […], was registered on each title of the [K Street].
51. My solicitors have carried out searches in relation to [D2 Pty Ltd]. I understand that:
51.1. The sole director and secretary of [D2 Pty Ltd] is [Mr Pirani];
51.2. The sole shareholder is [C Pty Ltd];
51.3. The sole director and secretary of [C Pty Ltd] is [Mr Pirani]; and
51.4.The sole shareholder of [C Pty Ltd] is [Mr Pirani].
52. The […] article published on the internet dated […] 2023 reports that an invitation for expression of interests has been published by [S Real Estate] on behalf of [B Group] inviting offers of over $100,000,000.00.
53. I do not know whether any sale of the [K Street] Property has advanced to settlement. I am anxious to ensure that any proceeds of sale are protected and do not leave the jurisdiction of this court.
53.1. A copy of:
i. ASIC search of [D2 Pty Ltd] is exhibited at pages 134 to 151;
ii. Title searches for the [K Street] Property;
iii. Mortgage of [R Limited] executed [in late] 2022;
iv.Caveat by caveator, [Q Limited];
v. 2015 acquisition transfer;
The wife also gives evidence of the recent lodgement of caveats on the former matrimonial home. In that respect, she says:
67. The Children and I currently live at the Family Home. The Family Home is a waterfront property. In or around early 2016, the existing home was demolished. A new home was constructed. I estimate the construction cost was not less than $101000,000.00. The Family Home comprises of a […] home with [multiple] bathrooms. [There are several special features]. Each of the Children have their own room. I estimate the current value of the Family Home to be approximately […].
68. I have instructed my solicitors to carry out a search of the title of the Family Home. The property is registered in [Mr Pirani’s] name solely. It is recorded that there is a mortgage to the Westpac Bank as well as caveats registered by [H Pty Ltd] ([H Pty Ltd]) and [B Pty Ltd] and a mortgage to [B Pty Ltd] [[B Pty Ltd] Mortgage]. The [H Pty Ltd] caveat was registered [in early] 2023. The caveat refers to an agreement between [H Pty Ltd] I and [Mr Pirani] dated [late] 2011, asserting there is a current amount outstanding of $386,250.37.
69. The second caveat was lodged by [B Pty Ltd] (obviously at [Mr Pirani’s] instigation) [in early] 2023 purporting to arise from an agreement concerning loans from [B Pty Ltd] to [Mr Pirani]. [Mr Pirani’s] actions in instigating the lodgement of this caveat in conjunction with other matters of his conduct since our separation causes me grave concern.
70. [In early and mid] 2023, [U Company] carried out title searches on the Family Home. The title search [in early] 2023 did not show a caveat and mortgage by [B Pty Ltd] on the Family Home. The result of the title search dated [mid] 2023 shows that [B Pty Ltd] has now registered a caveat and mortgage over the Family Home. A copy of the:
70.1. [H Pty Ltd] Caveat;
70.2. [B Pty Ltd] Caveat; and
70.3. [B Pty Ltd] Mortgage and Memorandum […],
are exhibited at pages 1627 to 1640.
The wife says that she recently had a text exchange with the husband in the following terms:
205. On 11 May 2023, I sent [Mr Pirani] a message via WhatsApp at approximately, 5:58pm. I requested that he transfer me money for the Children and my maintenance. I told him I will “have no choice but to go to Court.” [Mr Pirani’s] reply on 12 May 2023 was humiliating and insulting. He wrote “Hi [Ms Pirani], thank you for your message. I am responding to you because you have asked for a response by a deadline but I do not wish to have contact with you at this time.
I am in the process of resigning as a director of [B Pty Ltd] and associated companies. I am required to do this at law. [B Pty Ltd] has accounted for money I have borrowed for things like the construction of the house. I have never said you will be forced to leave but [B Pty Ltd’s] major creditors are pressing the sale of assets and withdrawing their credit. The house is affected because of the registered debts and because it falls within my personal guarantees. As you know I will always take care of my Children and will make whatever provision for their care and welfare including appropriate housing.
I have always made funds available to you for the purpose of the upkeep of the property, the welfare of the children and your own upkeep. I expressly told you to not make large cash withdrawals or transfers which you did. I am concerned about your transfers to [Mr T] who is a known fraudster and I believe a drug dealer. I am concerned about your conversion and sale of mine and our joint personal assets and have asked you to account for them. You have refused. I am ready to make whatever funds available for those purposes under appropriate controls to prevent your misuse of the money. However, with consideration that you have taken significant cash, jewelery and other personal effects you do have the means to fund these things yourself. The car is not owned by me. you have been offered a late model […] which you rejected.
you have changed the locks and disabled the cctv to the property in [Suburb G] owned by me. You did not have my permission to do this. Please provide a copy of the keys and allow access so the security systems can be renabled. my legal rights are reserved. If you commerce legal action you will likely trigger the financial collapse of [B Pty Ltd] in which there will be no money at the end. That is entirely your decision.
If required, I can produce the text exchange between [Mr Pirani] and myself.
(As per the original)
DISPENSING WITH SERVICE AND PROCEEDING EX PARTE
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provide that the Court may proceed without service of an application. In summary, the Rules provide as follows:
(1)Rule 2.34(1) provides that a party who is unable to serve a document may apply, without notice, for an order to dispense with service of the document, with or without conditions.
(1)Rule 2.34(2) provides that when considering an application under r 2.34(1), the Court may have regard to a number of factors including the nature of the proceeding.
(2)Rule 2.34(3) provides that if the Court orders that service of a document is dispensed with, then the document is taken to have been served.
The wife bears the onus of establishing to the satisfaction of the Court that the orders that she seeks should be made without notice to the husband.
The Rules also make provision for what someone in the position of the wife must establish to ground the making of an ex parte order. In that respect, r 5.11 provides:
5.11 Applications without notice
An applicant seeking that an interlocutory order be made without notice to the respondent must:
(a) satisfy the court about why:
(i)shortening the time for service of the application and the fixing of an early date for hearing after service would not be more appropriate; and
(ii) an order should be made without notice to the other party; and
(b)in an affidavit or orally, with the court’s permission, make full and frank disclosure of all the facts relevant to the application, including the following:
(i)whether there is a history or allegation of child abuse or family violence between the parties;
(ii)whether there have been any previous proceedings between the parties and, if so, the nature of the proceedings;
(iii)the particulars of any orders currently in force between the parties;
(iv)whether there has been a breach of a previous order by either party to the proceeding;
(v)whether the respondent or the respondent’s lawyer has been told of the intention to make the application;
(vi)whether there is likely to be any hardship, danger or prejudice to the respondent, a child or a third party if the order is made;
(vii)the capacity of the applicant to give an undertaking as to damages;
(viii)the nature of the damage or harm that may result if the order is not made;
(ix) why the order must be urgently made;
(x)the last known address or address for service of the other party.
In Stowe and Stowe (1981) FLC 91-027 (“Stowe”), the Full Court of the then Family Court of Australia made the following observations at 76,258–76,259:
Ex parte orders are dealt with in reg. 42. That regulation makes it clear that ex parte orders are to operate only until a specified time or (as in the present case) until further order of the Court (para. (5)). The Court is empowered to give directions as to the service of the order and the hearing of an application for a further order (para. (6)). Regulation 42 was considered by the Full Court in the case of Sieling (1979) FLC 90-627, where reference was made, with approval, to Ansah (1977) 2 W.L.R. 760. In that case, the Court of Appeal emphasised that if an order was made ex parte it should be limited in time to the shortest possible period which must elapse before a preliminary hearing could be arranged. It is implicit in the decisions of Sieling (supra) and Ansah (supra) that wherever possible short notice of the proceedings should be given to the respondent:
“The general principles are that the Court must be satisfied that the matter is of such urgency that the applicant’s interests (or the interests of the child) can be protected only by an immediate order. It is necessary to balance the likelihood of harm to the applicant against the hardship to the respondent of making an order without hearing him. The more drastic the order the more grave must be the risk to be averted and the more important the requirement that the respondent be heard at the earliest opportunity. An order that a party be excluded from the home or that a child be removed from the custody of a party must be supported by evidence of an imminent risk of such a nature that the Court cannot wail even the period of time necessary for short service.” (Sieling (1979) FLC 90-627 at p. 78,254.)
In those limited circumstances where it is necessary to make an ex parte order, the onus rests upon the applicant for the injunction both at the ex parte stage and at the later hearing of the matter to satisfy the Court that the circumstances justify the making and continuation of the order. This is so irrespective of whether the respondent formally applies to set aside the order. Counsel for the appellant husband submitted – correctly in our view – that the Court's discretion could miscarry if the onus were put upon the respondent to satisfy the Court that the order should be discharged.
Thus, in making an order ex parte, the Court is required to have regard to the nature and imminence of risk of harm.
To proceed in the absence of and without notice to a party is an extraordinary thing for a court to do. The circumstances in which a court does so have in the authorities been variously described as ‘anomalies’ or ‘exceptional’. The Full Court in Stowe as referred to above, cited with approval the observations of the United Kingdom Court of Appeal in Ansah v Ansah [1977] 2 All ER 638. Their Lord Justices observations bear repeating, where they stated at 642:
Orders made ex parte are anomalies in our system of justice which generally demands service or notice of the proposed proceedings on the opposite party (see Craig v Kanseen [1943] 1 KB 256 at 262). Nonetheless, the power of the court to intervene immediately and without notice in proper cases is essential to the administration of justice. But this power must be used with great caution and only in circumstances in which it is really necessary to act immediately. Such circumstances do undoubtedly tend to occur more frequently in family disputes than in other types of litigation … but even in such cases the court should only act ex parte in an emergency when the interests of justice or the protection of the applicant or a child clearly demands immediate intervention by the courts. Such cases should be extremely rare … Circumstances, of course, may arise when prior notice cannot be given to the other side; for example, cases where one parent has disappeared with the children, or a spouse, usually the wife, is so frightened of the other spouse that some protection must be provided against a violent response to service of proceedings, but the court must be fully satisfied that such protection is necessary.
I am satisfied that the circumstances of this matter are exceptional and that there is a basis established on the evidence to which I have earlier referred to proceed ex parte.
INJUNCTIONS
Section 114 of the Act provides that the Court may make such order or grant such injunction as it considers proper, including an injunction in relation to the property of a party to the marriage.
In Tsiang & Wu and Ors (2019) FLC 93-911, the Full Court summarised the relevant law in relation to injunctions in the following terms:
20.The grant of an injunction is discretionary and the basis on which such an order is made is well established. A purpose, as in this case, is to preserve the status quo pending resolution of the controversy. An applicant must demonstrate first that there is a serious issue to be tried. While that statement has been the subject of various iterations, in essence it requires the demonstration of an arguable case or as was said in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65], the applicant must “show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo”.
21.Next the applicant must demonstrate that the balance of convenience favours making the order sought. As part of this, the applicant must show that there is a “danger” or risk of dissipation of or dealings with assets which will frustrate any judgment in favour of the applicant.
22.In Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319, Gleeson CJ said after discussing the discretionary nature of the remedy at 321–325:
… as a general rule a plaintiff will need to establish, first, a prima facie cause of action against the defendant, and secondly, a danger that, by reason of the defendant’s absconding, or of assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with in some fashion, the plaintiff, if he succeeds, will not be able to have his judgment satisfied.
...
It is not difficult to imagine situations in which justice and equity would require the granting of an injunction to prevent dissipation of assets pending the hearing of an action even though the risk of such dissipation may be assessed as being somewhat less probable than not.
23.As McDougall J in Skyworks v 32 Drummoyne Road [2017] NSWSC 343 said:
24.The Court is required to undertake a qualitative evaluation of all the evidence that is available, to see if there is a sufficiently serious risk of frustration to justify the making of a freezing order. Further, the two considerations [namely, (1) whether there is a good arguable case and (2) whether there is a real risk of judgment frustration] should be analysed together (as each may impact on the other), and with an appreciation of both the underlying purpose of the rule and the relative risks of granting or withholding relief – the customary discretionary calculus.
24.In this case the identified risk was that the wife might dispose of assets in Australia and in her name in order to defeat the husband’s claim and, equally it was asserted that there was a risk that the second and third respondents too might deal with the partnership assets in a way so as to defeat the husband’s possible judgment or claim to that entity.
25.It is unnecessary to demonstrate a positive intention but merely the possibility of the event occurring. The determination about the balance of convenience may thus be an inference drawn from the facts and circumstances established by the applicant’s evidence.
26.Nor is it the role of the judge determining the question of the injunction to, in effect conduct a trial of the disputed evidence to resolve those disputes (see Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729).
27.As to the determination of the existence of the risk and its magnitude, in Palmer v Parbery [2019] QCA 27 McMurdo JA (with whom Fraser and Gotterson JJA agreed) said:
119.The determination of whether there exists a sufficiently serious risk of the dissipation of assets involves the evaluation of future possibilities, rather than the ascertainment of historical facts. The risk of dissipation might justify an order although the probability of the risk eventuating is less than 50 per cent. But, as the risk of dissipation must be a real and not merely a theoretical one, it must have an evidentiary basis. Where a fact is alleged by the plaintiff in support of its case about the risk, but there is contrary evidence from the defendant, must the fact be proved to the court’s satisfaction as if the application for the freezing order was the trial of the case? In my view, a plaintiff need not do so. A freezing order is interlocutory in nature; it does not involve a final determination of the parties’ positions. Usually it is made in circumstances of urgency in which the court is unable to conduct an extensive and conclusive factual inquiry in a way which is fair to both parties. Where the factual basis for the plaintiff’s case about the risk of dissipation is disputed, the risk will commonly have to be evaluated with the recognition that the factual basis for it is in doubt. Nevertheless, the possibility of the plaintiff’s evidence being correct, considered with other facts and circumstances, might mean that there is a sufficiently serious risk of the frustration of the satisfaction of a judgment as to justify the making of a freezing order. …
(Footnotes omitted)
Thus, to ground the wife’s relief, she needs to establish that there is a serious issue to be tried, alternatively expressed as a prima facie case for relief. She must also establish that her claim for relief will be imperilled if the injunction is not granted. To that extent, the Court might be satisfied about risk of dissipation by an assessment of future possibilities of an event occurring, which may be established by the drawing of inferences from the applicant’s evidence.
The question of prejudice to the respondent needs to be considered and the order made should be no more than is necessary. It is the applicant for the injunction who bears the onus of satisfying the Court that the circumstances justify the making of the order: Sieling & Sieling (1979) FLC 90-627 at 78,262.
The wife seeks relief against various corporate entities. They have been named as respondents to the application and are thus parties to the proceedings. They are entities that are ultimately controlled by the husband. As the matter will return to Court on Friday, they will be able to be heard as to the necessity for and or continuation of the injunctions. I am, however, satisfied that the making of the orders are reasonably necessary.
Addressing such of the factors in r 5.11 as are relevant, I am satisfied in light of the wife’s evidence that it would not have been more appropriate to shorten the time for service and to allocate an early return date (r 5.11(a)(i)). There is, according to the wife, a history of family violence and the wife gives evidence of threats and that she is fearful of the husband (r 5.11(b)(i)). There are no existing proceedings between the parties (r 5.11(b)(ii)).
The husband and the various corporate entities have not been told of the intention to make the application (r 5.11(b)(v)). I am unclear as to whether there will likely be hardship, danger or prejudice to any of the respondents if the order is made but to ameliorate such hardship, danger or prejudice, I will bring the matter back before the Court at the earliest opportunity (r 5.11(b)(vi)). I am satisfied that if the order is not made, there is a risk that the husband and consequentially the various corporate entities he controls may carry out the threats of harm referred to in the wife’s affidavit. My conclusion in that regard is informed by the wife’s evidence of past threats to remove her car, lock her out of her home and cut her off financially, which are all events that have eventuated (r 5.11(b)(viii)). I am satisfied on the basis of the wife’s evidence that there is a need for the order to be made urgently (r 5.11(b)(ix)).
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.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 7 June 2023
SCHEDULE OF PARTIES
SYC 3987 of 2023 Respondents
Fourth Respondent:
D1 PTY LTD
Fifth Respondent:
D2 PTY LTD
Sixth Respondent:
E PTY LTD
4
0