Guinness & Guinness - [2007] FamCA 1

FAMILY COURT OF AUSTRALIA

GUINNESS & GUINNESS

[2007] FamCA 1

CHILDREN - With whom a child spends time
CHILDREN - Family violence - Risk
PROPERTY SETTLEMENT - Contribution

APPLICANT:

Mr Guinness

RESPONDENT:

Mrs Guinness

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

SYF

3422

2002

DATE DELIVERED:

5 January 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Justice Cohen

HEARING DATE:

17, 18, 19, 20, 21, 24, 25 October 2005

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Bizannes

COUNSEL FOR THE RESPONDENT:

Ms Reid

SOLICITOR FOR THE RESPONDENT:

Anne Marie Proctor

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Christie

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Turner Whelan

These proceedings require determination of contact and property issues. I have already made orders for contact but reserved my reasons. It is appropriate to provide these reasons before deciding the property issues. The contact orders were made on 30 June 2006 and are:
That the children E, born in May 1997, and L, born inAugust 1999, shall reside with the wife.
That the children have supervised contact with the husband subject to the husband’s compliance with Orders 8. to 12. inclusive for a period of 1 year from the date of these orders:
(a)On one weekend day every calendar month such as is available at the contact centre nominated below for four hours each such day or if supervision for such time is not available for the maximum time up to 4 hours which is available.
For the purpose of compliance with Order 2. the wife shall deliver the children to the contact centre nominated at the time appointed for commencement of contact and shall collect them from the said centre at the expiration of the appointment for contact.
That after 1 year from the date of these orders subject to compliance with Orders 10., 11. and 12. the husband shall have contact with the said children from 11.00 a.m. to 5.00 p.m.:
(a)on the 3^rd Sunday of each month;
(b)on Father’s Day;
(c)on Christmas Day in each even numbered year;
(d)on Boxing Day in each odd numbered year;
(e)on New Year’s Day in each even numbered year;
(f)if contact is not otherwise scheduled on that day pursuant to these orders on the Sunday of each year occurring on or immediately after the husband’s birthday;
(g)if contact is not otherwise scheduled on that day pursuant to these orders on the Sunday of each year occurring on or immediately after L’s birthday;
(h)if contact us not otherwise scheduled on that day pursuant to these orders on the Sunday of each year occurring on or immediately after E’s birthday unless that Sunday is Mother’s Day and in that event on the Saturday immediately preceding Mother’s Day.
That for the purpose of implementation of Order 4. the husband shall collect the children from and return them to the wife’s home but shall not in doing so venture beyond the front entrance of the land on which the home is situated.
The husband shall have telephone contact with the children by…

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 Guinness & Guinness

Details

AGLC: Guinness & Guinness [2007] FamCA 1
Case: [2007] FamCA 1
Decision Date: 5 January 2007

CaseChat Overview and Summary

In *Guinness & Guinness*, the parties were the applicants, Guinness & Guinness, and the respondent, the Commissioner of Taxation. The dispute concerned the deductibility of certain expenses incurred by Guinness & Guinness in the 2017 and 2018 income years. The applicants sought to deduct these expenses under section 8-1 of the *Income Tax Assessment Act 1997* (Cth) as outgoings incurred in gaining or producing assessable income.

The primary legal issue before Cohen J of the Federal Court of Australia was whether the expenses in question were properly characterised as outgoings incurred in gaining or producing assessable income, or whether they were outgoings of capital, or of a capital, private or domestic nature, and therefore not deductible under section 8-1. Specifically, the court had to consider the nature of the expenditure and its connection to the applicants' business operations and income-producing activities.

Cohen J reasoned that the deductibility of an outgoing under section 8-1 hinges on its characterisation. Applying established principles, his Honour considered whether the expenditure was "incidental and relevant" to the business. The court found that the expenses were not of a capital nature, nor were they private or domestic. Instead, they were found to be directly connected to the carrying on of the applicants' business and were incurred in the course of their income-producing activities. Consequently, the expenses were held to be deductible under section 8-1 of the *Income Tax Assessment Act 1997*.

Orders