Pinta & Pinta - [2022] FedCFamC2F 34

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pinta & Pinta [2022] FedCFamC2F 34

File number(s): ADC 3795 of 2021

Judgment of: JUDGE BROWN

Date of judgment: 20 January 2022

Catchwords: FAMILY LAW – Interim application for sole occupation of jointly owned property – in the alternative partial or interim distribution of property – final hearing allocated in June of 2022 – significant controversy regarding extent of asset pool – high conflict – application dismissed.

Legislation: Family Law Act 1975 (Cth), Part.VIII, ss.75, 79, 80, 114

Cases cited: S & S (2002) FamCA 59
Davis v Davis (1976) FLC 90-062
Bassett v Bassett (1975) 1 AER 513
Page v Page (1981) FLC 91-025
Sieling v Sieling (1979) FLC 90-627
Lee Steere v Lee Steere (1985) FLC 91-626
Ferraro v Ferraro (1993) FLC 92-335
Clauson v Clauson (1995) FLC 92-595
Wardman & Hudson (1978) FLC 90-466
Trevi & Trevi [2018] FamCAFC 173
Russell & Russell [1999] FamCA 1875
Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Bevan & Bevan [2013] FamCAFC 116
Strahan v Strahan (2010) 42 Fam LR 203
Harris & Harris (1993) FLC 92-378

Division: Division 2 Family Law

Number of paragraphs: 125

Date of hearing: 10 December 2021

Place: Adelaide

Counsel for the Applicant: Mr Anderson

Solicitor for the Applicant: Clelands Lawyers

Counsel for the Respondent: Mr Jordan

Solicitor for the Respondent: The Law Offices of Elizabeth Temnoff
ORDERS

ADC 3795 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR PINTA

Applicant

AND:
MS PINTA

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

20 JANUARY 2022

THE COURT ORDERS THAT:
1.The application for interim orders filed by the wife on 4 December 2021 is dismissed.
2.The final hearing dates of 6, 7 & 8 June 2022 are confirmed.
3.The applicant file and serve all affidavit evidence he proposes to rely on at trial along with an updated Financial Statement on or before close of Registry filing on 9 May 2022.
4.The respondent file and serve all affidavit evidence she proposes to rely on at trial along with an updated Financial Statement on or before close of Registry filing on 23 May 2022.
5.On or before 23 May 2022 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
6.The applicant pay such daily hearing fee as required pursuant to the Family Law (Fees) Regulations 2012.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pinta & Pinta

Details

AGLC: Pinta & Pinta [2022] FedCFamC2F 34
Case: [2022] FedCFamC2F 34
Decision Date

CaseChat Overview and Summary

The case of Pinta & Pinta concerns an interim application by the wife, Ms Pinta, for sole occupation of jointly owned property, in the alternative a partial or interim distribution of property, pending the final hearing of the proceedings. The husband, Mr Pinta, opposed the application. The proceedings are high conflict and revolve around the division of the parties' marital estate, which includes a small business, the former matrimonial home and a second property, the D Street, Suburb E property. The court was required to determine whether it was just and equitable to make an interim property order, in the form of an injunction for sole occupancy, or an interim distribution of property, in the circumstances prevailing in the case. The court found that the application should be dismissed. The court held that the evidence before it was insufficient to justify the making of an interim property order, given the unresolved controversy over the extent of the asset pool, the imminence of the final hearing, and the need to avoid prejudice to the parties. The court also found that the wife had not demonstrated that it would be just and equitable to make an interim distribution of property in her favour. The court ordered that the final hearing dates of 6, 7 & 8 June 2022 be confirmed and directed the parties to file and serve all affidavit evidence and an updated Financial Statement by certain dates.

Orders