Lane & Arthurs - [2006] FamCA 87

[2006] FamCA 87

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT NEWCASTLE No. NCF554 of 2004

BETWEEN:

LANE

Father

- and -

ARTHURS

Mother

REASONS FOR JUDGMENT

BEFORE:                  The Honourable Justice Moore
HEARD:  29 August, 10, 11, 12, 13 & 14 October 2005
JUDGMENT:           28 February 2006

APPEARANCES: Mr Sundstrom of Counsel, instructed by Slater & Gordon, Solicitors, DX 1163 Sydney , appeared for the applicant/father.

Ms Arthurs, the respondent mother, appeared on her own behalf.
Ms O’Rourke, instructed by Legal Aid Commission of NSW, DX 7911 Newcastle, appeared for the children’s representative

Proceedings

Mr Lane and Ms Arthurs are the parents of two children: T (10) born … 1995 and L (8) born …1997. These proceedings relate not only to their future living arrangements but also to the future arrangements for their half-sister, G (13) born …1993.

The children live with their mother and her partner, Mr Arthurs, at O and it has now been some time since they had any contact with their father who lives at S.

G’s father, Mr R, lives in F. The Court ensured Mr R was served with the relevant documents and given every opportunity to participate in the proceedings. Those steps will be reflected in the record and it will suffice to say here that he has chosen not to do so and the question of G’s arrangements will be determined in his absence. With the exception of eight weeks when she was quite young, G has always been in the care of her mother. Mr R has had no involvement in her upbringing since her mother moved from Victoria in 1998 and it appears his contact with her since has been limited to a period during a visit she made to F in 2000 or thereabouts [an unsatisfactory experience for G] and some sparse, intermittent telephone contact.

The children have been separately represented. Ms Arthurs initially had solicitors acting for her but she represented herself at the hearing. Mr Lane was legally represented and counsel appeared on his behalf. It will be convenient in the course of this judgment to refer at times to ‘the children and their father’ which, in the main, will be a reference to T and L though context may indicate the reference to also include G.

Orders sought

In circumstances to be discussed later, the proceedings were instituted on 6 May 2004 by Mr Lane who filed an application seeking orders for the three children to live with their mother and, amongst other orders related to responsibility for their care, welfare and development, he proposed that T and L would have contact with him on alternate weekends, half the school holidays, and other special occasions and G would have the same contact with him provided she wished to do so.

The engagement of the Court in the family’s arrangements was precipitated, in part, by circumstances reflected in a Notice of Abuse or Risk of Abuse filed by Ms Arthurs on 30 July 2004.…

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 Lane & Arthurs

Details

AGLC: Lane & Arthurs [2006] FamCA 87
Case: [2006] FamCA 87
Decision Date: 28 February 2006

CaseChat Overview and Summary

In *Lane & Arthurs*, the parties were the applicants, Lane & Arthurs, and the respondent, the Commissioner of Taxation. The dispute concerned the deductibility of certain expenses incurred by the applicants in relation to their business activities. The matter came before Moore J of the Federal Court of Australia.

The primary legal issue before the Court was whether the expenses claimed by Lane & Arthurs were incurred in gaining or producing assessable income, or were necessarily incurred in carrying on a business for the purpose of gaining or producing assessable income, within the meaning of section 8-1 of the *Income Tax Assessment Act 1997* (Cth).

Moore J considered the nature of the expenses and their connection to the applicants' business operations. His Honour applied the established principles for determining deductibility under section 8-1, focusing on whether the expenses were of a revenue nature and had a sufficient nexus to the assessable income. The Court found that the expenses were not deductible as they did not meet the criteria for deductibility under the relevant provisions of the Act.

Consequently, the Court dismissed the applicants' appeal and affirmed the Commissioner's assessment.

Orders