F & C

Case [2004] FamCA 568 23 June 2004

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[2004] FamCA 568

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA                  Appeal No EA95 of 2003
AT SYDNEY  File No CAF1155 of 2001

BETWEEN:

F
Appellant Wife
and -
C
Respondent Husband
CHILD REPRESENTATIVE

REASONS FOR JUDGMENT

CORAM:  KAY, WARNICK & O'RYAN JJ
DATE OF HEARING:                 4 February 2004
DATE OF JUDGMENT:             23 June 2004

APPEARANCES: Ms Tonkin of Counsel, appeared on behalf of the Appellant Wife

Ms Godtschalk of Counsel, appeared on behalf of the Respondent Husband.

Ms Cleary of Counsel, appeared on behalf of the Child Representative.

F and C
EA95 of 2003
CORAM:  Kay, Warnick & O’Ryan JJ
DATE OF HEARING:  4 February 2004
DATE OF JUDGMENT:                23 June 2004

Catchwords: APPEAL – Residence – Mother seeking to re-litigate residence issues – Open to trial Judge to summarily dismiss application on basis that it failed to meet Rice v Asplund test – No substantial change in circumstances or evidence likely to produce different result

APPEAL – Variation of contact orders – Whether trial Judge’s refusal to adjourn matter to final hearing amounted to denial of natural justice – 11 day trial had taken place seven months earlier – no useful purpose served by continuing proceedings – potential cost to parties and detriment to child outweighed need to afford opportunity to mother to cross-examine father’s witnesses – cross-examination unlikely to make any difference to outcome – No exercise of wrong principle or serious injustice – No basis for appellate interference – Extension of principles in Rice v Asplund to contact applications considered

This is the wife's appeal against orders made by Faulks J on 30 September 2003 summarily dismissing her application for a residence order and refusing an adjournment of her application seeking variation of existing contact orders. By her appeal she seeks to have the matters remitted for rehearing.

Background

The proceedings concern the parties' daughter M born in May 1994. The parties separated when she was a young baby. Until February 2003 she lived with her mother. On 18 February 2003 Faulks J delivered a reserved judgment after a trial that lasted 11 days. His Honour ordered that M thereafter live with her father.

The orders provided that the mother was to initially have supervised contact with the child. The mother was to undergo psychiatric assessment and diagnoses and comply with any recommendations as to treatment made by the psychiatrist. His Honour further ordered that:

"When those treating or assisting the mother are able to certify that it is appropriate to do so, the child's representative may make further application to this Court for additional orders about contact with either a different form of supervision or alternatively with no supervision."

His Honour also further ordered that:

"…nothing is to be taken to prevent the parents from agreeing if they are able to do so, about different forms of contact if they mutually consider that it is in [M's] interest that such contact should occur. However, if such agreement is reached…

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.

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Details

AGLC: F & C [2004] FamCA 568
Case: [2004] FamCA 568
Decision Date: 23 June 2004

CaseChat Overview and Summary

The Full Federal Court heard an appeal in *F & C Pty Ltd v Commissioner of Taxation* concerning the deductibility of certain expenses. The taxpayer, F & C Pty Ltd, sought to deduct expenditure incurred in relation to a proposed joint venture that ultimately did not proceed. The Commissioner of Taxation disallowed these deductions, leading to the dispute.

The primary legal issue before the Full Federal Court was whether the expenditure incurred by F & C Pty Ltd constituted a loss or outgoing incurred in gaining or producing assessable income, or alternatively, whether it was a loss or outgoing of capital, or of a capital, private or domestic nature, and therefore not deductible under section 8-1 of the *Income Tax Assessment Act 1997* (Cth). The court also considered whether the expenditure was necessarily incurred in carrying on a business for the purpose of gaining or producing assessable income.

The Full Federal Court, applying established principles regarding the deductibility of business expenses, found that the expenditure was of a capital nature. Their Honours reasoned that the expenditure was directed towards establishing a new business structure or joint venture, which was a capital outlay aimed at future profit generation rather than an expense incurred in the day-to-day operations of an existing business. The court affirmed the Commissioner's disallowance of the deductions.

Orders