Pitte and Pitte

[2008] FamCA 316

FAMILY COURT OF AUSTRALIA

PITTE & PITTE [2008] FamCA 316

FAMILY LAW – Urgent oral application for injunctions and partial property settlement – issue of urgency discussed where final hearing weeks away.

Family Law Act 1975 (Cth)

Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (No 1) (1982) 46 ALR 398
Harris and Harris (1993) FLC 92-378

APPLICANT: Mr Pitte

RESPONDENT: Mrs Pitte

FILE NUMBER: MLF 1141 of 2006

DATE DELIVERED: 8 MAY 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 5 MAY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS DELLIDIS

SOLICITOR FOR THE APPLICANT: MARK SHENKEN

SOLICITOR FOR THE RESPONDENT: MR SCHETZER

SOLICITOR FOR THE RESPONDENT: PEARSONS SCHETZER & ASSOCIATES

Orders

1. That the oral application of the husband made on 5 May 2008 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Pitte & Pitte is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1141  of 2006

MR PITTE

Applicant

And

MS PITTE

Respondent

REASONS FOR JUDGMENT

1. An oral application was made by the husband for interim orders on 5 May 2008.  The solicitor for the wife was put on notice by letter dated 30 April 2008 setting out with precision, the orders that the husband would seek.  At that particular time, the case was ready for trial but not reached.

2. Simply put, the husband seeks to facilitate the sale of a unit in a block of units and for the money to be used to pay a variety of debts.  It must be said that some of those debts are pressing and of serious concern. 

3. As the husband would have it, this is damage control.  As the wife would have it, to take this step would thwart her desire to take the whole of the property in the settlement dispute.  She adds however two important things.  The first is that the husband, albeit in control of the business pursuant to an order, is acting unilaterally and potentially to her detriment.  The second is that she has the creditors in hand or at least, under control. 

4. I propose to hear this case as a final hearing on 18 June 2008.  Unfortunately, this case has a history of being delayed. 

5. Briefly, the litigation history is as follows.  The husband is aged 71 years of age and retired.  The wife is aged 74 years and normally runs the business which is conducted from the premises which are in dispute.  This is a marriage of 37 years duration.  The parties separated as long ago as 1 August 2004. 

6. The husband filed his application for orders on 29 March 2006.  He sought the sale and division of the property at L.  The wife’s response was filed on 19 May 2006.  She sought effectively by transfer of shares in H Pty Ltd, control and absolute ownership of the units at L.

7. On 28 November 2007, Mushin…