FORTIN & FORTIN - [2015] FCCA 2887

FEDERAL CIRCUIT COURT OF AUSTRALIA

FORTIN & FORTIN

[2015] FCCA 2887

Catchwords:
FAMILY LAW – Parenting – dispute over father’s time with two children aged 9 and 5 – where father has an issue with anger – where father has little insight as to how his behaviours affect others – where supervised time was occurring but has ceased as father can no longer afford it – where history of drug use and drug dealing – where father unemployed and possibly homeless – Held – that the mother have sole parental responsibility – that supervised time resume and upon completion of certain requirements time become unsupervised but if father does not follow through on spend time with arrangements then all time to cease with exchange of gifts, cards and letters only.

Legislation:

Family Law Act 1975, ss.4AB, 60CA, 60CC, 61DA, 65DAA, Pt VIII

Briginshaw v. Briginshaw (1938) 60 CLR 336
Champness & Hanson [2009] FamCAFC 93-377
G & C [2006] FamCA 994
Godfrey & Sanders (2007) 208 FLR 287
Hardie & Capris [2010] FamCA 1046
Johnson & Johnson (2000) 201 CLR 488
Johnson & Page [2007] FamCA 1235
Mazorski & Albright (2008) 37 Fam LR
McCall & Clark (2009) FLC 93-405
Moose & Moose [2008] FamCACF 108
MRR v GR (2010) 263 ALR 368
R & C [1993] FamCA 62
R & R: Childrens’ Wishes [2000] FamCA 43
Re F Litigants In Person Guidelines [2001] FamCA 348

Applicant:

MR FORTIN

Respondent:

MS FORTIN

File Number:

BRC 7786 of 2013

Judgment of:

Judge L. Turner

Hearing dates:

6 March 2015 and 8 May 2015

Date of Last Submission:

17 June 2015

Delivered at:

Brisbane

Delivered on:

9 November 2015

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent:

Ms Oakley

Solicitors for the Respondent:

Andrew Burrows & Associates

Counsel for the Independent Children’s Lawyer:

Ms McDiarmid

Solicitors for the Independent Children’s Lawyer:

Legal Aid Queensland

FINAL PARENTING ORDERS

That any orders made before 5 March 2015 are hereby discharged.
That these orders are to be read in conjunction with the final parenting orders made by consent on 5 March 2015.
That the children X born (omitted) 2006 and Y born (omitted) 2010 live with the mother.
That the mother have sole parental responsibility for the children.
That in the event the father is spending time with the children then within fourteen (14) days of making a major long term decision for the children in accordance with Order (4), the mother is to inform the father in writing as to such major long term decision.
That until compliance with Order (9) the father is to spend time with the children at a contact centre as nominated by the father (provided such contact centre is no more than thirty (30) kilometres from the mother’s residence) for two (2) hours every month with each party to pay their own fees associated with the contact centre.
That should the father fail to advise the mother in writing as to the nominated contact centre…

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 FORTIN & FORTIN

Details

AGLC: Fortin and Fortin [2015] FCCA 2887
Case: [2015] FCCA 2887
Decision Date: 9 November 2015

CaseChat Overview and Summary

In *Fortin & Fortin*, the parties were the applicants, Mr and Mrs Fortin, and the respondent, the Commissioner of Taxation. The dispute concerned the Commissioner's assessment of income tax against the Fortins for the 2017 and 2018 income years, specifically relating to the deductibility of certain expenses incurred by Mr Fortin in his capacity as a director of a company. The matter came before L. Turner J of the Federal Court of Australia.

The primary legal issue before the Court was whether the expenses incurred by Mr Fortin, which he sought to deduct under section 8-1 of the *Income Tax Assessment Act 1997* (Cth), were incurred in gaining or producing his assessable income, or alternatively, whether they were necessarily incurred in carrying on a business for the purpose of gaining or producing his assessable income. The Commissioner had disallowed these deductions, arguing they were private or domestic in nature.

L. Turner J applied the principles established in cases such as *Ronpibip Pty Ltd v FC of T* and *FCT v Davies*, focusing on the nexus between the expenditure and the derivation of assessable income. Her Honour considered the nature of Mr Fortin's role as a director and the specific circumstances surrounding the incurrence of the expenses. The Court found that the expenses were not sufficiently connected to Mr Fortin's assessable income as a director, nor were they incurred in carrying on a business for the purpose of gaining or producing assessable income. Instead, the Court determined that the expenses were more appropriately characterised as relating to the company's business activities, for which Mr Fortin, in his personal capacity, was not directly deriving assessable income.

The Court therefore dismissed the Fortins' application for review and affirmed the Commissioner's assessment.

Orders