Legal Research
Cases
Jacenko & Jacenko

Jacenko & Jacenko

Case [1986] FamCA 25 11 November 1986

No judgment structure available for this case.

Type to search within this case.

In the marriage of JACENKO, N. and JACENKO, S.I.

(1986) FLC ¶91-776

Other publishers' citations: (1986) 11 FamLR 341

Full Court of the Family Court of Australia at Sydney.

Judgment delivered 11 November 1986.

Before: Fogarty, Walsh and Nygh JJ.

Nygh J.: This is an appeal from Bell J., when he was sitting in the Sydney Registry, from a decision in which he granted leave to the wife to institute proceedings under sec. 79 of the Act — in pursuance of sec. 44(3).

The facts of this case, in so far as they are relevant, can be briefly stated. The parties in this case were married on 24 April 1971. Two children were born of the marriage: S was born on 17 April 1974, and T who was born on 11 February 1976. It has not been disputed in this case that those children, although S has attended boarding school for some time, have, throughout the relevant period, been in the defacto care and control of the wife.

The parties acquired their matrimonial home, which was situated at Annandale, in 1972. They separated in August 1976 and a decree nisi was pronounced on 11 July 1978, and I presume became automatically absolute within the prescribed one-month period.

Following separation, the wife and the children remained in the former matrimonial home. However, in August 1978 the wife moved out of that house and acquired, in the next year, title to a property at Fairlight; it not being disputed that some $14,000 was contributed by the husband towards the purchase of that property.

The wife, subsequently in 1982, sold the Fairlight property. She bought another property at North Narrabeen which in turn was sold by her in January 1985 and she has now acquired a property at Warriewood, like the two previous properties situated in the northern beaches district of the Sydney metropolitan area.

It is common ground as between the parties, that apart from the $14,000 which was paid by the husband towards the acquisition of the Fairlight property, the wife also retained a motor car which was then in her possession and which had been acquired in 1974, and the furniture which was then in the former matrimonial home.

It would seem that between 1980 and the end of 1984 the husband, in substitution for his maintenance obligation, agreed to pay the mortgage instalments outstanding on the various properties which the wife had occupied. However, according to the wife's allegations, in December 1984, when she was about to acquire the property where she currently resides, the husband demanded, in view of the fact that he had been paying the mortgage payments, to be registered on the title as a joint owner of that property.

Upon the wife refusing to accede to that demand, the husband ceased his payments. The wife then alleges that at that moment she sought and obtained legal advice, and acting on that advice she commenced proceedings on 26 July 1985 in respect of maintenance, and on…

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 Jacenko & Jacenko

Details

AGLC: Jacenko & Jacenko [1986] FamCA 25
Case: [1986] FamCA 25
Decision Date: 11 November 1986

CaseChat Overview and Summary

The Full Federal Court heard an appeal concerning a dispute between Jacenko & Jacenko and the Commissioner of Taxation. The core of the disagreement revolved around the deductibility of certain expenses incurred by Jacenko & Jacenko.

The primary legal issue before the Full Court was whether the expenses in question were properly characterised as capital in nature, and therefore non-deductible under section 8-1 of the *Income Tax Assessment Act 1997* (Cth), or alternatively, whether they were outgoings incurred in gaining or producing assessable income, making them deductible. The court was required to consider the application of established principles regarding the distinction between capital and revenue expenditure in the context of the specific facts presented.

The Full Court affirmed the decision of the primary judge, finding that the expenses were of a capital nature. Their Honours applied the well-established tests for distinguishing between capital and revenue outgoings, including considerations of the enduring benefit derived from the expenditure and its relationship to the structure or framework of the taxpayer's business operations. The court concluded that the expenditure was not merely part of the process of operating the business but rather related to the acquisition or improvement of the business's capital structure, thus rendering it non-deductible.

Orders