Commissioner of Taxation for the Commonwealth of Australia v Tomaras & Ors

The Commissioner of Taxation sought special leave to appeal to the High Court of Australia concerning the extent of the Family Court's power under section 90AE of the *Family Law Act 1975* (Cth) to make substitution orders directed to creditors. The dispute centred on whether this power extended to directing the Commissioner of Taxation in respect of tax-related liabilities, with the Commissioner arguing that it did not.

The legal issues before the High Court included whether the presumption that statutory provisions in general terms do not bind the Crown was engaged by section 90AE, and if so, whether it was rebutted. The Commissioner contended that the court below erred in its approach to this presumption, arguing that it should have been engaged and that the presumption was not correctly rebutted. A further issue was the proper construction of section 90AE in light of the *Taxation Administration Act 1953* (Cth) and the nature of tax-related liabilities.

The High Court considered whether the presumption of Crown immunity applied to section 90AE, with the Commissioner arguing it should have been engaged and that the court below incorrectly found it was not applicable or was rebutted. The Commissioner submitted that the court below had applied older concepts regarding the presumption and that more recent High Court authority suggested a different approach. The respondent argued that the specific tax debts in question were finalised, meaning they were no different from any other debt and therefore not subject to any special Crown immunity. The respondent further contended that section 90AE, particularly when read with section 90AC, was designed to protect the economic interests of creditors, including the Crown, by ensuring that substitution orders would not prejudice their ability to recover debts.

The High Court granted special leave to appeal and ultimately allowed the appeal, finding that the Family Court did not have the power under section 90AE of the *Family Law Act* to make substitution orders directed to the Commissioner of Taxation in respect of tax-related liabilities. The Court held that the presumption of Crown immunity was engaged and had not been rebutted, and that the *Taxation Administration Act* created a regime that section 90AE could not override.