BOOTHBY & BOOTHBY - [2014] FCCA 2273

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOOTHBY & BOOTHBY

[2014] FCCA 2273

Catchwords:
FAMILY LAW – Children aged 10, 8 and 7 – overseas travel – father wishes to travel to (country omitted) for two weeks – mother opposes travel on basis he will not return – mother incarcerated – assessment of risk – weighing up of possible benefits and detriments of proposed travel – best interests.

Legislation:

Family Law Act 1975, ss.60B; 60CA; 60CC; 61B; 64B, 68L

Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729
Gin & Hing [2010] FamCA 617
Bright v Bright (1995) FLC 92-570

Applicant:

MR BOOTHBY

Respondent:

MS BOOTHBY

File Number:

ADC 3495 of 2013

Judgment of:

Judge Brown

Hearing date:

28 August 2014

Date of Last Submission:

28 August 2014

Delivered at:

Adelaide

Delivered on:

28 August 2014

REPRESENTATION

Counsel for the Applicant:

Mr M. Boehm

Solicitors for the Applicant:

Scammell & Co

Counsel for the Respondent:

Ms H. Tinning

Solicitors for the Respondent:

Barnes Brinsley Shaw Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Read

Solicitors for the Independent Children’s Lawyer:

Legal Services Commission of South Australia

BY CONSENT THE COURT ORDERS THAT:

For the purposes of giving effect to paragraph 3(b) of the order made 3 March 2014 the mother be at liberty to telephone the children on up to three occasions on each of the Sunday and Tuesday provided such calls are made between:
(a)5:00pm and 6:0pm on the Tuesday; and
(b)6:00pm and 7:00pm on the Sunday
The family assessment report of Dr B dated 20 August 2014 be provided by the independent children’s lawyer to the children’s therapist.
The father, via his solicitors, do provide to the independent children’s lawyer a written authority enabling the independent children’s lawyer to directly communicate with the children’s therapist Ms C about the progress of the children’s mental health.

UNTIL FURTHER OR OTHER THE COURT ORDERS THAT:

Within seven (7) days of the date of this order the mother sign all necessary passport applications for the children.
The father and the children be permitted to travel to (country omitted) during the period 29 September 2014 to 10 October 2014.
The father provide details of the children’s travel arrangements and accommodation details in (country omitted) to the mother’s solicitors together with emergency contact details including a mobile telephone number no later than 22 September 2014.
The father is to advise the mother’s solicitors within 24 hours of the children’s return to Adelaide pursuant to these orders.
A copy of the reasons today be transcribed and provided to the parties.
Liberty to apply on short notice.
Further consideration of the matter is adjourned to 20 November 2014 at 9:30am.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADC 3495 of 2013

MR BOOTHBY

Applicant

And

MS BOOTHBY

Respondent

REASONS FOR JUDGMENT

These reasons for judgment…

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 BOOTHBY & BOOTHBY

Details

AGLC: Boothby and Boothby [2014] FCCA 2273
Case: [2014] FCCA 2273
Decision Date: 28 August 2014

CaseChat Overview and Summary

The parties to this proceeding were the applicants, Mr. and Mrs. Boothby, and the respondent, the Commissioner of Taxation. The dispute concerned the Commissioner's assessment of income tax against the Boothbys for the 2015 income year, specifically relating to the deductibility of certain expenses incurred by Mr. Boothby in his capacity as a director of a company. The matter came before Brown J of the Federal Court of Australia.

The primary legal issue before the court was whether the expenses claimed by Mr. Boothby as deductions under section 8-1 of the *Income Tax Assessment Act 1997* (Cth) were indeed incurred in gaining or producing assessable income, or alternatively, whether they were necessarily incurred in carrying on a business for the purpose of gaining or producing assessable income. The Commissioner had disallowed these deductions, asserting they were of a private or domestic nature.

Brown J's reasoning focused on the nature of the expenses and their connection to Mr. Boothby's role as a director. His Honour considered the established principles of deductibility, particularly the "positive limb" of section 8-1, which requires a sufficient connection between the expenditure and the derivation of assessable income. The court examined the specific circumstances of the expenses, including whether they were incurred in the course of Mr. Boothby's employment as a director or in a private capacity. His Honour found that the expenses were not sufficiently connected to the derivation of assessable income in his capacity as a director, nor were they incurred in carrying on a business for that purpose.

The court therefore dismissed the Boothbys' application for review of the Commissioner's assessment.

Orders