Pirani & Pirani (No 5)
[2025] FedCFamC1F 149
•28 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pirani & Pirani (No 5) [2025] FedCFamC1F 149
File number: SYC 3987 of 2023 Judgment of: CHRISTIE J Date of judgment: 28 February 2025 Catchwords: FAMILY LAW– Application in a proceeding – Vacation of hearing date – Where the applicant seeks to vacate a hearing date - Where this application to vacate is opposed by most of the respondents - Application to vacate is dismissed
CORPORATIONS LAW - Leave to continue court proceedings against a company as per the requirements of 471B of the Corporations Act - Leave granted.
FAMILY LAW - PRACTICE AND PROCEDURE - Application under s 102NA of the Family Law Act 1975 (Cth) - Where none of the mandatory provisions of s 102NA(1)(c)(i), (ii), or (iii) apply - 102NA order not made as there was no mandatory or discretionary basis for such an order.
FAMILY LAW - PROPERTY - Sale of property - Where the Applicant seeks an order requiring the sale of jewellery - Where a respondent claims a lien over this jewellery - Orders made to list the jewellery for sale and hold the generated money in a controlled trust account.
Legislation: Corporations Act 2001 (Cth)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Duarte & Morse (No 4) [2024] FedCFamC1A 95
Elgin and Elgin [2015] FamCAFC 155
Division: Division 1 First Instance Number of paragraphs: 56 Date of hearing: 28 February 2025 Place: Sydney Counsel for the Applicant: Mr Todd Solicitor for the Applicant: Thurlow Fisher Lawyers 1st Respondent: Litigant in person Counsel for the 2nd, 5th & 6th Respondents: Mr Pesman SC Solicitor for the 2nd, 5th & 6th Respondents: Harris Freidman Lawyers Counsel for the 7th Respondent: Mr Foster (direct brief) Counsel for the 9th Respondent: Mr Beaumont SC with Mr Hollo Solicitor for the 9th Respondent: Fairmont Legal Counsel for the 14th Respondent: Mr Knackstredt Solicitor for the 14th Respondent: ZZ Lawyers The 3rd, 4th, 8th, 10th, 11th & 12th 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:
CHRISTIE J
DATE OF ORDER:
28 FEBRUARY 2025
THE COURT ORDERS THAT:
1.Leave is granted (to the extent necessary) pursuant to s 471B of the Corporations Act to continue proceedings as against the 2nd, 5th and 6th respondents.
2.Leave is granted to the applicant to file and serve an Amended Initiating Application on or before 5 March 2025.
3.Time for compliance with order 6 of the Orders of 30 September 2024 is extended to 4:00 pm 7 March 2025.
4.Time for compliance with Order 3 of the Orders of 30 September 2024 is extended to 4:00 pm 7 March 2025.
5.Time for compliance with Order 5 of the Orders of 30 September 2024 is extended to 4:00 pm 7 March 2025.
6.Within seven days from the date of these orders, the 7th respondent do all acts and things and sign all documents necessary to release the jewellery held by the 7th respondent at AB Pty Ltd in respect of which the 7th respondent asserts a general lien to either AC Auction House, AD Auction House or AE Auction House, for the purpose of listing the jewellery for sale, on the following basis:
(a)The Auctioneer is to be appointed by the applicant and 7th respondent jointly in writing (from the three above); and
(b)The proceeds of the sale of the jewellery are to be held in a controlled money trust account with Thurlow Fisher Lawyers on behalf of the husband and wife pending further agreement or orders of the Court.
7.The application filed 14 February 2025 and each of the responses to that application are otherwise dismissed.
8.The response of the 7th respondent filed 27 February 2025 is adjourned to 18 March 2025 at 10:00 am.
9.Leave is granted to the 14th respondent to amend the Application in a Proceeding filed on 15 November 2024.
10.The costs of the 2nd - 6th, 9th - 13th and 14th respondents of today's application are reserved.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym Pirani & Pirani has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
The court is determining the wife’s application to vacate final hearing dates in this matter. The application to vacate the hearing is opposed by all parties to the proceedings save the eighth respondent.
When the proceedings commenced they related to property adjustment and parenting matters between the husband and wife consequent on the breakdown of their marriage.
Final parenting orders were made by consent on 19 November 2024 and the matter remains listed for a final hearing commencing 18 March 2025.
On 7 July 2023 a judge of this court made interim orders. Among those orders was an order that the husband pay to the wife the sum of $450,000 by way of interim property adjustment – the affidavit material suggests her intention was to apply those funds to payment of legal fees.
On the same date corporate interests of the husband were placed under administration. It seems apparent that the effect of that was to prevent the husband from accessing funds belonging to the entities he had hitherto controlled.
The material filed by the 2nd respondent suggests that it is likely that the 2nd respondent will be placed into liquidation at the creditors meeting scheduled for 11 March 2025, although I was told at the oral hearing of this application that by operation of law that liquidation has now occurred.
The husband has conducted these proceedings from outside Australia. Most recently he has done so as a self-litigant.
I understand the case the wife seeks to argue at trial, it is set out in the affidavit filed in support of this application to which I will return later. I do not understand what (if any) orders the husband seeks. To that end I directed that the husband file an Amended Response to the Application for Final Orders on or before 26 February 2025. The husband has not done so.
The husband forwarded an affidavit (erroneously labelled Response to Application in a Proceeding) to the court. He did not file it on the portal. He did not copy the other parties on his email to the court. That document has been provided by the court to the parties today.
In addition to the order to vacate the hearing date the wife seeks that the court make a declaration that the provisions of s102NA of the Family Law Act (1975) (Cth) (“the Act”) apply to cross-examination in these proceedings.
RELEVANT BACKGROUND
The proceedings were filed on 5 June 2023. The matter was listed for final hearing by order dated 19 November 2024.
All parties – except for the wife have indicated they are in a position to proceed.
Helpfully, the affidavit which was filed on behalf of the 2nd, 5th & 6th respondents sets out in summary form their understanding of the assets, liabilities, superannuation and financial resources of the husband and wife.
It accords with submissions which were made to me today about the mathematics which apply.
I set out in table form the contents of that summary.
Asset Owned by Value The estimated net proceeds of sale of the Suburb G Property Joint $4,693,784 Suburb J Property Wife $950,000 Wife’s personal effects and jewellery Wife $700,000 Husband’s “other” property Husband $192,568 Wife’s “other” property Wife $54,731 Total = $6,591,083 Liability Owed to Value First Respondent’s loan account with the 2nd respondent 2nd respondent $ 11,211,703
It is apparent that if the 9th respondent is successful in establishing his claim to the funds available, the surplus will be inadequate to meet the claim made by the 2nd, 5th and 6th respondents.
It is also salient to note the following debts are claimed by the interveners who have represented the wife in these proceedings:
(a)$839,111.15 in legal fees said to be owed to AF Lawyers (8th respondent);
(b)$500,000 in legal fees said to be owed to ZZ Lawyers (14th respondent);
(c)$450,000 in legals fees said to be owed to Ms OO (7th respondent).
If the claims of the 9th, 2nd, 5th& 6th respondents are established they will exhaust the funds available not only from the sale of the Suburb G property but also from property in the wife’s name.
I acknowledge that the wife intends to argue that various of the transactions which create the liabilities (excluding legal fees), at least in respect of ZZ Lawyers and AF Lawyers are shams.
In recent times the 12th respondent has filed a Submitting Notice and the 11th respondent has filed a Notice of Discontinuance. This would appear to be a recognition on the part of those persons/entities of the commercial realities of this case.
CONSIDERATION
An application to vacate a hearing date is an exercise of the case management powers of the court. The court in making such decisions is weighing the competing interests of the individual litigants in the proceeding before the court against the public policy considerations of ensuring timely finalisation of all matters before the court.
It is not in doubt that the Court has the power to adjourn the trial dates: Rule 1.06, Table 1 item 3(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”).
Section 67(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) provides:
The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1), must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
The overarching purpose is identified as:
…to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
The words “quickly” and “efficiently” are self-explanatory.
The same overarching purpose is referred to in ss 95 and 96 of the Act.
As the High Court said in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175:
In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not have been allowed. The discretion of the primary judge miscarried.
These principles have been the subject of recent discussion in the appellate division of this court.
In Duarte & Morse (No 4) [2024] FedCFamC1A 95 the Full Court of the Family Court (Austin, Hartnett and Brasch JJ) said at (56):
Decisions about adjournments are pre-eminently interlocutory decisions on matters of practice and procedure which must often be made speedily. Avoidance of undue delay and the efficient use of public resources are considerations which may transcend the interests of the parties. The times are long gone when parties are left to control the course of litigation. The resolution of litigation serves the public as a whole, not merely the parties (Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 189–190, 211–215, 217 and 227).
I must take into account the wife’s persistent (and almost entirely unexplained) failure to comply with the court’s directions; directions which were designed to require the wife to identify the case she was seeking to run.
The non-compliance is not limited to but includes the following:
(a)On 15 August 2023, the Court noted that neither the applicant nor the first respondent had filed documents in compliance with Court Orders. On 15 September 2023, the Court ordered the applicant and the first respondent to file documents; they did not comply.
(b)On 27 October 2023, the Court ordered the applicant and the first respondent to file evidence and comply with directions; there was no compliance.
(c)On 25 January 2024, the Court extended the time for compliance with the Orders made on 15 September 2023; there was no compliance.
(d)On 14 March 2024, the Court ordered the applicant to file documents, which was not complied with.
(e)On 22 July 2024, the Court ordered the applicant and the first respondent to file documents; there was no compliance with the order.
(f)On 30 September 2024, the Court allocated final hearing dates commencing on 18 March 2025 and made Orders for the filing of evidence, including the filing of a Draft Balance Sheet, this has not occurred.
(g)On 19 November 2024, the Court made Orders for the filing of evidence including Points of Claim and Points of Defence by all parties asserting a security interest in the Suburb G property by 17 December 2024. Neither the applicant nor the first respondent complied.
(h)On 12 December 2024, the Court extended the time for compliance with the Orders made on 19 November 2024. Neither the applicant nor the first respondent complied.
(i)On 31 January 2025, the Court made Orders extending the time for compliance by the applicant. The applicant did not comply.
On 31 January 2025 the applicant wife foreshadowed an application to vacate the hearing dates. Accordingly, I ordered that any Application to vacate the hearing dates was to be filed and served within 7 days of the date of those Orders. The wife did not comply with that order.
It is necessary that I have regard to any explanation which may have been provided by the applicant to explain failure to comply with court orders.
The wife relied on exhibit 1 which was a letter dated 12 February 2025, addressed "To Whom It May Concern” and signed by Dr AG, a consultant clinical psychologist. Dr AG describes the wife as undertaking regular psychological intervention for long-term marital discord that resulted in symptoms of mental health conditions. The letter does not otherwise suggest that she has an incapacity to give instructions or that her health conditions prevent her from attending to preparation for trial. The letter cannot be accorded significant weight in the circumstances of this case since there is no direct connection with her failure to participate in the litigation, including compliance with orders to date, nor does it suggest that she is unable to do so at present.
The wife engaged new solicitors on 10 February 2025. I accept that they have diligently endeavoured to prosecute the case on behalf of the wife subject to their instructions. An affidavit by the wife’s new lawyer identified a need for expert evidence in respect of the claim of the seventh respondent. As has been the subject of discussion at the hearing today I have previously made such orders for such evidence. They were not complied with.
Importantly the applicant wife has not indicated how the situation she is in will change if the adjournment is granted. She has not offered to pay costs or otherwise acknowledged that in due course it may well be found that the liabilities will have increased by accrual of the interest during any period of adjournment.
The applicant wife does not explain how or why her files would be released if the adjournment is granted.
Ultimately, as the High Court reaffirmed in AON Risk doing justice between the parties according to law remains the guiding principle even where decisions relate, as here, to case management.
Effectively the wife was seeking extensions of time to file trial material and comply with existing directions. I am prepared to grant those but only to the extent necessary to retain the final hearing dates.
The wife was seeking a three-month adjournment. The reality of the court lists mean that matters which are adjourned cannot be accommodated in the short term and will be adjourned with all attendant costs to a date, in all likelihood in 2026. Given the interest considerations and additional legal fees – this situation is untenable.
Given the factual background set out above I am not persuaded that an adjournment is necessary to achieve justice as between the parties. I must consider the interests of all parties here (including third parties). In that regard the authorities acknowledge that declining an adjournment may “produce a sense of injustice in a party” for the sake of doing justice to other parties to the litigation: see Elgin and Elgin [2015] FamCAFC 155.
While the consequence to the wife may be that she is required to appear on her own behalf or prepare for hearing more rapidly than she has elected. I cannot find that this in and of itself is sufficient prejudice to adjourn the hearing date, particularly having regard to the contents of paragraphs eight and nine of the affidavit of her solicitor which set out the work undertaken to date, but do not identify with precision the case the wife seeks to bring, making it impossible to understand in a real sense, the prejudice which she says she faces. I note that this is a case that notwithstanding the amount of paper which it has generated will largely be determined having regard to major transactions:
(a)Those involving monies said to have been loaned to the husband by B Pty Ltd; and
(b)Those involving monies said to have been loaned by the 9th respondent and/or related entities to the husband.
If the primary judge finds that the monies are payable to the third parties as they assert, then the pool available for distribution as between the husband and wife is modest (and the further claims on it significant).
Section 102NA
Turning to the application for an order under s102NA. Section 102NA provides:
102NA Mandatory protections for parties in certain cases
(1) If, in proceedings under this Act:
(a) a party (the examining party) intends to cross‑examine another party (the witness party); and
(b) there is an allegation of family violence between the examining party and the witness party; and
(c) any of the following are satisfied:
(i) either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
(ii) a family violence order (other than an interim order) applies to both parties;
(iii) an injunction under section 68B or 114 for the personal protection of either party is directed against the other party;
(iv) the court makes an order that the requirements of subsection (2) are to apply to the cross‑examination;
then the requirements of subsection (2) apply to the cross‑examination.
(2) Both of the following requirements apply to the cross‑examination:
(a) the examining party must not cross‑examine the witness party personally;
(b) the cross‑examination must be conducted by a legal practitioner acting on behalf of the examining party.
Note 1: This section applies both in the case where the examining party is the alleged perpetrator of the family violence and the witness party is the alleged victim, and in the case where the examining party is the alleged victim and the witness party is the alleged perpetrator.
Note 2: This section does not limit other laws that apply to protect the witness party (for example, section 101 requires the court to forbid the asking of offensive questions and section 41 of the Evidence Act 1995 requires the court to disallow certain questions, such as misleading questions).
Note 3: To avoid doubt, a reference to a party in this section includes a reference to a person who is a party because of the operation of a provision of this Act (for example, sections 92 and 92A, which are about intervening parties). This section only applies to an intervening party if the intervening party is involved in the allegation of family violence, whether as the alleged perpetrator or as the alleged victim.
(3) The court may make an order under subparagraph (1)(c)(iv):
(a) on its own initiative; or
(b) on the application of:
(i) the witness party; or
(ii) the examining party; or
(iii) if an independent children’s lawyer has been appointed for a child in relation to the proceedings—that lawyer.
There is no basis for the court to consider the making of a mandatory order as there is no evidence to satisfy the section.
The evidence on which the wife relied is in paragraph 26 and reads:
The First respondent is currently unrepresented. I understand that given the history of domestic violence he is precluded from cross examining me. I seek orders under section 102NA precluding the respondent from cross-examining me.
For what it is worth the husband says he does not intend to cross-examine the wife – but may wish her to answer pre-prepared written questions. If that is his election it will be a matter for the trial judge.
Sale of jewellery
The wife’s application also seeks orders which if made would require sale of jewellery held at AB Pty Ltd in respect of which the 7th respondent (Ms OO) claims a lien relating to legal fees.
The 7th respondent filed an Application in a Proceeding (as opposed to a response to the wife’s application a proceeding) but same may be explained by the fact that it was filed one day later. That application is not listed before the Court today.
The 7th respondent filed a Response to the wife’s application which consents (conditionally to sale). The response appears to seek determination of the 7th respondent’s entitlement to the legal fees and costs – but those remain matters for final determination.
It was not plain why the court would require valuation (with its attendant costs) prior to sale by a recognised auction house and no submission advanced on behalf of the 7th respondent elucidated a basis. I propose to make orders in similar terms to those sought by the wife – the 7th respondent can make inquiries in respect of the 3 auction houses proposed and select one.
It was not plain why the court would do anything other than require the proceeds to be held in a trust or controlled monies account pending final orders. I accept that in the first instance that should be the wife’s lawyers but in trust for the husband and wife. If the wife becomes unrepresented those funds should be held in trust for the husband and wife by the 7th respondent’s solicitors – that is not a finding as to entitlement to the funds.
ANCILLARY MATTERS
In the context of this application more than one party has raised the absence of a mediation. The position has been difficult given the husband has left the jurisdiction and does not indicate a present intention to return. I am not minded to order that the parties mediate but if they are minded to do so then they are to be encouraged and the husband’s participation could occur by audiovisual means.
The wife has raised the husband’s participation at the trial. I have earlier indicated the husband will need to return to Australia or appear via Microsoft Teams (or Webex) in a location where he is visible by video connection and can be heard and hear the proceedings without impediment. Ultimately, any disadvantage will be to the husband (and not the wife) since he has had ample forewarning of this requirement and hence has been given every opportunity to participate in the hearing – the ultimate responsibility will lie with him.
COSTS
These proceedings have been occasioned by the wife’s failure to comply with court orders. In so far as she sought vacation of the hearing date she has been wholly unsuccessful. While impecuniosity is no bar to the making of a costs order the wife’s financial circumstances are relevant.
Accordingly, with the agreement of all parties the question of the costs of today’s application will be reserved.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 13 March 2025
SCHEDULE OF PARTIES
SYC 3987 of 2023 Respondents
Fourth Respondent:
D1 PTY LTD
Fifth Respondent:
D2 PTY LTD
Sixth Respondent:
E PTY LTD
Seventh Respondent:
MS OO
Eighth Respondent:
AF LAWYERS
Ninth Respondent:
MR AH
Tenth Respondent:
AJ PTY LTD
Eleventh Respondent:
AL LIMITED
Twelfth Respondent:
AK PTY LTD
Thirteenth Respondent:
(DISCONTINUED)
Fourteenth Respondent:
ZZ LAWYERS
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