FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bancroft & Bancroft [2024] FedCFamC2F 397
File number(s): MLC 1416 of 2020 Judgment of: JUDGE HARLAND Date of judgment: 28 March 2024 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Commissioner of Taxation application to intervene – whether or not the Commissioner has waived that right or is estopped from doing so Legislation: Family Law Act 1975 (Cth) ss 75(2), 75(2)(ha), 79(10), 92
Superannuation Guarantee (Administration) Act 1992 (Cth) ss 33, 37, 40, 65
Legal Services Directions 2017
Cases cited: Commissioner of Taxation & Worsnop and Anor [2009] FamCAFC 4
Dalton & Dalton [2017] FamCAFC 78
Henley & Bestori [2024] FedCFam1A 12
Newbon v City Mutual Life Assurance Society Ltd [1935] 52 CLR 723
Division: Division 2 Family Law Number of paragraphs: 78 Date of hearing: 28 February 2024 Place: Melbourne Solicitor for the Applicant Mr Metlej of Craddock Murray Neumann Lawyers The First Respondent Litigant in person Counsel for the Second Respondent Mr Salamanca Solicitor for the Second Respondent RRR Lawyers ORDERS
MLC 1416 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: COMMISSIONER OF TAXATION OF THE COMMONWEALTH
Applicant
AND: MR BANCROFT
First Respondent
MS BANCROFT
Second Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
28 MARCH 2024
THE COURT ORDERS THAT:
1.Leave be granted to the Commissioner of Taxation of the Commonwealth of Australia to intervene in these proceedings pursuant to section 79(10) of the Family Law Act 1975 (Cth).
2.Within 30 days, the Commissioner of Taxation file an affidavit providing a list of each individual employee’s superannuation entitlements outlining the individual:
(a)Superannuation guarantee shortfalls;
(b)Nominal interest; and
(c)Administration fee;
pursuant to the amended assessments issued under section 33 of the Superannuation Guarantee (Administration) Act 1992 (Cth) of the quarterly periods between period 1 April 2014 to 31 December 2015, 1 April 2016 to 30 June 2017, 1 October 2017 to 31 March 2019, and 1 July 2019 to 31 December 2019.
3.The proceeding is adjourned for a directions hearing on 20 May 2024 at 9.30am.
4.The application in a proceeding filed 6 November 2023 is otherwise dismissed.
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 persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this…
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- Bancroft & Bancroft [2024] FedCFamC2F 397
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- [2024] FedCFamC2F 397
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CaseChat Overview and Summary
The primary legal issue before the court was whether the Commissioner had waived his right to intervene or was estopped from doing so. The Bancrofts argued that the Commissioner's prior conduct, including communications with the parties, amounted to a waiver or estoppel preventing the Commissioner from intervening. The court considered the relevant statutory provisions and case law, focusing on whether the Commissioner's actions could be interpreted as a relinquishment of his right to intervene or an estoppel that would prevent him from asserting his right.
In its decision, the court found that the Commissioner had not waived or been estopped from intervening. The court held that the Commissioner's prior communications with the Bancrofts did not constitute a waiver, as they were not unequivocal or clear enough to indicate a relinquishment of the right to intervene. The court also found that there was no estoppel, as the Bancrofts had not relied on any representation or conduct of the Commissioner to their detriment. The court concluded that the Commissioner's right to intervene was preserved and granted leave for the Commissioner to intervene in the proceedings.
The court made several orders in relation to the application. Firstly, it granted leave for the Commissioner to intervene in the Bancrofts' proceedings. Secondly, it directed the Commissioner to file an affidavit detailing each employee's superannuation entitlements within 30 days. Thirdly, the court adjourned the proceeding for a directions hearing. Finally, it dismissed an application filed by the Commissioner on 6 November 2023.
Orders
Orders of the court
MLC 1416 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
COMMISSIONER OF TAXATION OF THE COMMONWEALTH
Applicant
AND:
MR BANCROFT
First Respondent
MS BANCROFT
Second Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
28 MARCH 2024
THE COURT ORDERS THAT:
1. Leave be granted to the Commissioner of Taxation of the Commonwealth of Australia to intervene in these proceedings pursuant to section 79(10) of the Family Law Act 1975 (Cth).
2. Within 30 days, the Commissioner of Taxation file an affidavit providing a list of each individual employee’s superannuation entitlements outlining the individual:
(a) Superannuation guarantee shortfalls;
(b) Nominal interest; and
(c) Administration fee;
pursuant to the amended assessments issued under section 33 of the Superannuation Guarantee (Administration) Act 1992 (Cth) of the quarterly periods between period 1 April 2014 to 31 December 2015, 1 April 2016 to 30 June 2017, 1 October 2017 to 31 March 2019, and 1 July 2019 to 31 December 2019.
3. The proceeding is adjourned for a directions hearing on 20 May 2024 at 9.30am.
4. The application in a proceeding filed 6 November 2023 is otherwise dismissed.
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 persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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