Farina & Lofts (No 2) - [2014] FamCA 537

FAMILY COURT OF AUSTRALIA

FARINA & LOFTS (NO 2)

[2014] FamCA 537

FAMILY LAW – CHILDREN – INTERIM - where the mother seeks that the children live primarily with her

APPLICANT:

Mr Farina

RESPONDENT:

Ms Lofts

FILE NUMBER:

BRC

10102

2012

DATE DELIVERED:

18 July 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

30 June 2014

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Hawkshaw by way of direct access brief

IT IS ORDERED UNTIL FURTHER ORDER THAT

Paragraphs 1, 2, 3 of the Order made 14 June 2013 is discharged.
The Father and the Mother have equal shared parental responsibility for the major long term issues of the children, N born … 2006 and M born … 2010 (“the children”) including in respect of:
(a)       the children’s education (both current and future);
(b)       the children’s religious and cultural upbringing;
(c)       the children’s health;
(d)       the children’s names;
(e)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with or live with either parent.
The parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and make a genuine effort to come to a joint decision.
Each party has responsibility for daily decisions about the day to day care, welfare and development of the children while in his or her care.
The children live with the mother.
The children spend shall time with the Father at all times as may be agreed by the parties in writing but, failing agreement, for five (5) consecutive nights every fortnight being from the conclusion of school or 3.00 pm on Wednesday in week 1 of each fortnight until the commencement of school or 8.30 am on Monday in week 2 of each fortnight.
During school terms and unless otherwise agreed between the parties in writing, the father shall collect the children from school or day care at the commencement of their time with him and return them to school or day care at the conclusion of their time with him.
In the event that the parents are spending overnight time with the children at some place other than their usual residence, they are to notify the other parent by email of their contact details and provide notice of how long they will be away from their usual residence.
Whilst the children are spending time with the Father, that the children shall communicate with the Mother by telephone call or video conferencing such as Facetime or Skype:
(a) between 6.30 pm to 7.30 pm on Sunday night;
(b) between 6.30 pm to 7.30 pm on the Tuesday night; and
(c)the Father shall do all that is necessary to reasonably facilitate the telephone call or video conferencing between the children and Mother by facilitating the children in initiating the call to the Mother.
Whilst the children are in the care of the Mother, that the children shall…

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 Farina & Lofts (No 2)

Details

AGLC: Farina & Lofts (No 2) [2014] FamCA 537
Case: [2014] FamCA 537
Decision Date: 18 July 2014

CaseChat Overview and Summary

In *Farina & Lofts (No 2)*, Hogan J of the Supreme Court of Victoria considered a dispute between the applicants, Farina and Lofts, and the respondent, the Commissioner of State Revenue. The applicants sought to have a notice of assessment issued by the Commissioner set aside, arguing that it was invalid.

The central legal issue before the court was whether the Commissioner had the power to issue a notice of assessment under section 104 of the *Land Tax Act 1958* (Vic) when the taxpayer had not lodged a return. The applicants contended that the Commissioner's power to assess was contingent upon the lodgement of a return, and that in the absence of a return, any assessment issued was therefore invalid.

Hogan J reasoned that section 104 of the *Land Tax Act 1958* (Vic) conferred a broad power on the Commissioner to assess land tax where a taxpayer had failed to lodge a return. His Honour found that the language of the section did not impose a prerequisite of a lodged return for the exercise of this power. The court applied the principle that statutory powers are to be interpreted according to their plain meaning, and that the Commissioner's duty to assess land tax could be discharged even without the taxpayer's compliance in lodging a return.

The court dismissed the applicants' application, upholding the validity of the Commissioner's notice of assessment.

Orders