Pirani & Pirani (No 3)

Case [2023] FedCFamC1F 561

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Pirani & Pirani (No 3) [2023] FedCFamC1F 561

File number(s): SYC 3987 of 2023
Judgment of: CAMPTON J
Date of judgment: 7 July 2023
Catchwords: FAMILY LAW – INTERIM PROPERTY AND SPOUSAL MAINTENANCE – Determination of a number of interim applications of both the husband and wife as to interim or partial property distribution, litigation funding and spousal maintenance – Where the wife seeks that the husband pay $1 million by way of litigation funding, $150,000 by way of either interim or partial property settlement or lump sum spousal maintenance and $4,924 per week by way of interim spouse maintenance – Orders made broadly as sought by the wife, save that the quantum of the litigation funding be $450,000 and of weekly maintenance be $3,500 per week.
Legislation:

Child Support (Assessment) Act 1989 (Cth) s 139

Family Law Act 1975 (Cth) (“the Act”) ss 72, 75, 79, 80, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 8, ch 6, ch 11, r 1.33

Cases cited:

Bevan and Bevan (1995) FLC 92-600; [1995] FamCA 95

Bing and Bing (2007) FLC 93-318; [2007] FamCA 418

Hall v Hall (2016) 257 CLR 490; [2016] HCA 23

Marchant & Marchant (2012) FLC 93-520; [2012] FamCAFC 181

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Mitchell and Mitchell (1995) FLC 92-601; [1995] FamCA 32

Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578

Salvage & Fosse (2020) FLC 93-966; [2020] FamCAFC 144

Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166

Swift & Swift [2020] FamCA 991

Weir and Weir (1993) FLC 92-338; [1992] FamCA 69

Zschokke and Zschokke (1996) FLC 92-693; [1996] FamCA 79

Division: Division 1 First Instance
Number of paragraphs: 115
Date of hearing: 30 June 2023
Place: Sydney
Counsel for the Applicant: Mr Hedges SC
Solicitor for the Applicant: New South Lawyers
Counsel for the First Respondent: Mr Kearney SC
Solicitor for the First Respondent: Barkus Doolan Winning Family Lawyers
The Second, Third, Fourth, Fifth and Sixth 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:

CAMPTON J

DATE OF ORDER:

7 July 2023

THE COURT NOTES THAT:

A.For the purpose of these orders, “the children” means:

(a)X born 2013;

(b)Y born 2015; and

(c)Z born 2018.

B.The husband agrees to pay periodic child support to the wife for the children in the sum of $500 per week to be deposited into a bank account as nominated by the wife’s solicitors in writing.

C.The husband agrees to pay by way of non-periodic children support for the children the following expenses as and when they fall due:

(a)100 per cent of all school…

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AGLC
Pirani & Pirani (No 3) [2023] FedCFamC1F 561
Case
[2023] FedCFamC1F 561
Decision Date

CaseChat Overview and Summary

Pirani & Pirani (No 3) involves a dispute between the husband and wife regarding property settlement matters following their separation. The wife filed an affidavit on 5 June 2023 with 1,758 pages of exhibits, while the husband filed his affidavit on 29 June 2023 with 156 pages of exhibits. The court had directed that consideration would only be given to annexures or exhibits if they were identified in oral or written submissions. The court was required to decide various legal issues, including the characterisation and quantification of the wife's claim for periodic spousal maintenance and the parties' financial circumstances since separation.

The court considered the wife's evidence that she had been a homemaker and had contributed to the relationship by improving the husband's and the B Group's image and reputation. The court found that an order for the husband to pay the wife $3,500 per week by way of periodic spousal maintenance was proper, based on the wife's role in the relationship and the husband's financial means. The court also considered the husband's evidence that he had drawn down on a directors' loan to pay the wife and had ongoing expenses related to the Suburb G property.

In conclusion, the court found that the wife's claim for periodic spousal maintenance was justified and ordered the husband to pay the wife $3,500 per week. The court also considered the parties' financial circumstances since separation, including the husband's evidence of payments made to the wife and ongoing expenses related to the Suburb G property. The wife's evidence of threats made by the husband and the seizure of cash by the New South Wales Crime Commission were also considered in the context of the overall property settlement.

The final orders of the court are set out at the forefront of the judgment.

Orders

Orders of the court

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Background

Background to the litigation

The wife’s affidavit filed 5 June 2023 annexed 1,758 pages of exhibits. The husband’s affidavit filed 29 June 2023 annexed 156 pages of exhibits. Each party thereafter tendered large bundles of documents. A direction was made at the outset of the hearing that consideration would not be given to any of the annexures or exhibits to the affidavits or documents in the tender bundles unless the document itself, or the proposition of fact to be proved or inferred from the document, had been identified in oral or written submissions.BACKGROUND The husband is 55 years of age and wife is 35 years old. They are each of Country P heritage and spent some months in Country P during each year of their cohabitation. Throughout the relationship, the husband engaged in property development through the B Group. The wife deposed that B Pty Ltd, being the ultimate holding company of the B Group, was incorporated in 2009. The B Group comprises more than 80 different corporations (including the additional respondents) and trusts, which are listed in a schedule to the wife’s affidavit. The import of each of the husband and wife’s evidence, consistent with the Mr NN document, is that the B Group is a very complex, interrelated web of corporate and trust structures which undertakes work relating to residential, commercial and retail properties with its own finance arm. The husband was previously married and finalised a property settlement with his first wife in 2011. He has three children from this prior marriage. One of those children has been charged by the police with allegations relating to a B Group project. The flavour of the wife’s evidence is that there is some prospect of the husband also being charged with criminal offences should he return to Australia and hence he will not return to Australia in the short to medium term future. This may or may not resonate with the events concerning the New South Wales Crime Commission at [40] below. The wife worked in an office of the B Group while studying at university in 2009. She made no direct financial contribution when she commenced living with the husband in 2012. The wife said it was her understanding, based on conversations she had with the husband, that he owned a property at Suburb PP and a property in Suburb L at that time. The husband did not dispute this evidence in his affidavit. The husband and wife’s eldest child was born in 2013, shortly after the commencement of cohabitation. The import of the wife’s affidavit was that her primary role throughout the relationship was as a homemaker and parent to the children. She said she undertook voluntary roles with charitable organisations and worked at the B Group, indirectly assisting the husband by improving his image and reputation, as well as that of the B Group. The Suburb G property was acquired in 2016. The existing residence on the property was demolished and a new home constructed. The wife estimates the current value of the Suburb G property to be in the range of $16 million. It is subject to a Westpac mortgage, a B Pty Ltd mortgage and a number of caveats.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I find that an order that the husband pay to the wife $3,500 per week by way of periodic spousal maintenance is proper.CONCLUSION For all of the above reasons, I shall make the orders as set out at the forefront of this judgment.

Ratio Decidendi

Legal Principle Established

The wife gives evidence, not put into issue by the husband in his affidavit, that during the marriage she received a wage of $10,000 per month from the B Group, accessed from the husband cash on request of between $5,000 to $10,000 per week and had all but unlimited use of the husband’s credit card. Events and financial circumstances since separation As recorded above, the parties separated in either January or February 2023. The husband said that he perceives the wife returning to Australia with the children in January 2023 as “her kidnapping of the children” (at paragraph 14 of his affidavit). The wife says she left Country P with the children in anticipation of them recommencing school in Australia. She contends that separation occurred in mid-February 2023. The husband has resided in Country P since late 2022. His affidavit evidence foreshadows that he will remain in Country P in the immediate future, and implies that the children will continue to live with the wife in Australia. He said that he seeks to spend time with the children, including in Country P (at paragraph 14 of his affidavit). The husband’s evidence at paragraph 50 of his affidavit is that he drew down on a directors’ loan made to him from B Pty Ltd (the second respondent) to pay the wife:(a)A total of $559,230 from 15 November 2022 until 9 May 2023, being an average of approximately $22,369 per week; and(b)$20,000 by way of urgent spouse maintenance pursuant to an order made on 14 June 2023. The husband’s Case Outline records that he said he has also paid significant ongoing expenses in relation to the Suburb G property, including mortgage repayments and utilities in the sum of $7,385 each week. The parties are in dispute as to the fact, value and possession of funds held in cash in a safe in Country P and in a safe in the home at Suburb G. The wife’s affidavit records that in early 2023 a warrant was executed by the New South Wales Crime Commission for a search of the Suburb G property, and that $250,000 was seized on that day. This cash remains held by the Crime Commission. The wife gives evidence in her affidavit that since separation the husband has caused her to be followed by up to 10 men, to be photographed by a private investigator and as to he then sending her electronic communications threatening to “kill” her and that he will “steal” the children. She says on Easter Sunday the husband threatened to get people to take the children away from her and bring them to him in Country P. She says that he threatened to lock her and the children out of the Suburb G property unless she apologised and “stop[ped] this nonsense”. In early 2023, the wife drove the children in Motor Vehicle 1 to a local shopping centre. She said that while there, she received an email from the human resources manager of the B Group advising that Motor Vehicle 1 was “owned by the company” and was required to be returned within an hour of the wife receiving the email. The wife said she returned to look for Motor Vehicle 1 in the shopping centre and could not find it. She reported the motor vehicle as missing to the police. Her affidavit then records:90. [In mid-2023], I received a voice message from [the husband]. During the course of that message he said [I have deposed to what I regard as the most relevant parts of the message in this context] the following :[Mr Pirani]: "of course I want to take the car… I did that. .. because of what you did to me. .. you don't understand jack shit ... call me back send me the fucking contract between you and him [Mr RR] and tell me how much he owes you because he is going to fuck you with a big bill you fucking slut".