Federal Circuit and Family Court of Australia
(DIVISION 2)
Pinta & Pinta (No 2) [2022] FedCFamC2F 1512

File number(s): ADC 3795 of 2020

Judgment of: JUDGE BROWN

Date of judgment: 9 November 2022

Catchwords: FAMILY LAW – Property – marriage of twenty years in duration – marriage produced four children – parties engaged in construction business – loans taken from business in respect of which no liability for tax has been calculated – Part 7A tax liability (Top Up Tax) – business assessed to have negative value – parties have other significant debts – parties agree that former matrimonial home needs to be sold to pay debt – husband to retain business and indemnify wife in respect of other debts including tax liabilities – husband has operated business from other premises owned by parties during marriage – after separation husband has lived in premises – wife seeks to retain business premises and utilise as family accommodation – children estranged from their father – wife asserts property only viable form of accommodation for herself and children – husband seeks to retain property – balance of convenience – assessment of contributions – add backs – just and equitable

Legislation:
Evidence Act1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VIII, VIIIB, ss 75, 79, 90XC

Income Tax Assessment Act 1936 (Cth) Div 7A

Cases cited:
Bevan & Bevan [2013] FamCAFC 116

NHC & RCH (2004) FLC 93-204 at 79,318-9 118, 129

Clauson & Clauson (1995) 18 Fam LR 693, 710

C & C (2005) 33 Fam LR 414, 424

Collins & Collins (1990) FLC 92-149

Farnham & Farnham [2022] FedCFamC2F 83

Ferguson & Ferguson (1978) FLC 90-500

Ferraro v Ferraro (1992) 16 Fam LR 1

Fox v Percy (2003) 214 CLR 118

Hickey & Hickey (2003) 30 Fam LR 355

In the Marriage of Browne & Green (1999) 25 Fam LR 482

In the Marriage of DJM and JLM (1998) 23 Fam LR 396

In the Marriage of Kowaliw (1981) FLC 91-092

In the Marriage of AJO & GRO (2005) 33 Fam LR 134

In the Marriage of Townsend (1994) 18 Fam LR 505

Kowaliw & Kowaliw (1981) FLC 91-092

Laskari & Laskari [2014] FamCA 1183

L & L [2003] FamCA 40

Pinta & Pinta [2022] FedCFamC2F 34

Phillips & Phillips (2002) 168 FLR 438

Pierce v Pierce (1999) FamCA 74

Rushton & Rushton [2011] FMCAfam 1259

Russell & Russell (1999) 25 Fam LR 629, 644

Stanford v Stanford (2012) 247 CLR 108

Steinbrenner & Steinbrenner [2008] FamCAFC 193

Trevi & Trevi [2018] FamCAFC 173

Waters & Jurek (1995) 20 Fam LR 190, 196

Watson & Ling [2013] FamCA 57

Division: Division 2 Family Law

Number of paragraphs: 398

Date of hearing: 6 & 7 June 2022

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 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION…

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 (No 2)

Details

AGLC: Pinta & Pinta (No 2) [2022] FedCFamC2F 1512
Case: [2022] FedCFamC2F 1512
Decision Date

CaseChat Overview and Summary

The parties to the proceedings, Mr Pinta and Ms Pinta, were married in 1998 and separated in 2018. The husband commenced proceedings on 14 August 2020 in order to seek formal orders to spend time with the children concerned – with X and Y, as they wished; and defined periods for the two younger children, W and Z. In their response filed on 4 December 2020, Ms Pinta did not specify in percentage terms what proportion of the parties’ marital assets she sought to receive. It is currently her position that she should receive somewhere in the vicinity of 70%. The major issue has come to the fore, which is incapable of consensual resolution. Its necessary determination, by the court, will create a winner and a loser with almost certainly a concomitant increase in the bitterness and hostility between the parties concerned. The issue is one which mathematicians would characterise as a zero sum game – namely one in which only one of the parties can be successful in the desired outcome and the other must lose totally. In mathematical terms player one's gain is equivalent to player two's loss, therefore the net improvement in benefit of the game is zero. The wife asserts that the property is a known quantity. It is close to schools selected for the children, in a suburb with which she is familiar. From her perspective, it is a known quantity. It is her submission that these are powerful factors which militate in favour of her being able to move into the D Street, Suburb E property, which will be mortgage free and not involve any incidental purchase costs, such as stamp duty. Mr Pinta has operated his business from the D Street, Suburb E property during their marriage. He wants to retain it. From his perspective, it would represent a gross inconvenience, if he had to re-locate the plant and equipment relating to the business, to alternative premises, particularly given he proposes (and the wife agrees) that he will acquire the wife’s interest in their business and it will continue to be the major source for the family through the provision of child support. The husband contends that the property is integral to the operation of the business at the present time and if it is withdrawn as a de facto depot it will be highly disruptive to it. This may push the business into further insolvency, which in all the circumstances, the court considers to be potentially very unfair. In addition, as indicated above, the court is concerned that the sum to be realised to the husband, if Ms Pinta acquires D Street, Suburb E alone, will not be sufficient to fund alternative accommodation for the husband and the business. The court is satisfied that D Street, Suburb E provides an idiosyncratic solution for Mr Pinta in terms of being able to provide him with low cost personal accommodation and facilities for his business. Regardless of whether or not the wife gets D Street, Suburb E, she will have to suffer the inconvenience of having to move. If she retains the property she will have to utilise the entire sum notionally realised from the sale of F Street, Suburb G to allocate to the husband and unless it sells for more than its current valuation and even then she may be short the amount required. How she will obtain the necessary sum is unclear to the court, unless she liquidates her interest in H Street, Suburb E or turns to her family. She will have no buffer of cash to cover her for exigencies. The court has decided that the husband should be given the best opportunity to maintain the on-going viability of the business in order that he can continue to support himself; discharge debts incurred during the marriage and provide a maximum level of support to the family through child support. The court has ordered that the parties’ assets, after the sale of the former matrimonial home, be divided on a 70/30 basis, after discharge of the mortgage on D Street, Suburb E and the discharge of the line of credit secured against the former matrimonial home, on the basis that the husband retain the property which he currently occupies, at D Street, Suburb E and the parties retain the other items of property currently in their respective names and control. The court has also ordered that each party retain the superannuation standing in their respective names.

Orders