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LARDNER & RAZAK

LARDNER & RAZAK

Case [2020] FamCA 742 4 September 2020

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FAMILY COURT OF AUSTRALIA

LARDNER & RAZAK

[2020] FamCA 742

FAMILY LAW – CHILDREN – Undefended interim hearing – Best interests – Where father is currently incarcerated and serious criminal charges against the father are presently listed for trial in September 2020 – Where appropriate the matter proceed on an undefended basis – Where consideration of applicable principles – Where orders made providing the mother with sole parental responsibility – Where orders made for the child to live with the mother and have no time or communication with the father – Where appropriate to make an order pursuant to s 68B of the Family Law Act 1975 (Cth) for the personal protection of the child.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 69ZN

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Banks & Banks [2015] FamCAFC 36
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FamCAFC 104
George & George [2013] FamCAFC 182
Goode and Goode [2006] FamCA 1346
Jarrah & Fadel [2014] FamCAFC 14
Marvel v Marvel (No 2) [2010] FamCAFC 101
Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Razak & Lardner [2018] FamCA 941
Smith & Smith [2017] FamCAFC 226
SS & AH [2010] FamCAFC 13

APPLICANT:

Mr Lardner

RESPONDENT:

Ms Razak

INDEPENDENT CHILDREN’S LAWYER:

Ms Wearne

FILE NUMBER:

PAC

131

2018

DATE DELIVERED:

4 September 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

17 July 2020

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT:

No appearance

SOLICITOR FOR THE RESPONDENT:

Ms Baltins of Legal Aid NSW Domestic Violence Unit

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Wearne of Reid Family Lawyers

Orders Made On 17 July 2020 As Follows:

Upon Noting That There Is No Appearance By Or On Behalf Of The Applicant Father And Upon Further Noting That The Father’s Solicitor Filed A Notice Of Ceasing To Act On 14 July 2020 And Upon Noting That The Father Remains In Custody Awaiting Trial In Relation To Serious Offences Relating To The Mother, It Is Ordered That

The father’s Application in a Case filed 21 February 2019 be struck out and dismissed.

It Is further Ordered, Pending further Order, That

The respondent mother, Ms Razak, (“the mother”) shall have sole parental responsibility for the child X born … 2017 (“X”).
X shall live with the mother.
X shall spend no time and have no communication with the applicant father, Mr Lardner (“the father”).
Pursuant to section 68B Family Law Act the father, Mr Lardner is restrained by injunction from:
(a)Approaching or contact X and / or causing any third party to do so on his behalf.
(b)Assaulting, threatening, stalking, harassing or otherwise intimidating X and / or causing any third party to do so on his behalf.
(c)Attending, entering, or remaining at any place X may live, attend school, pre-school, play group or day-care and / or causing any third party to…

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.

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Details

AGLC: LARDNER & RAZAK [2020] FamCA 742
Case: [2020] FamCA 742
Decision Date: 4 September 2020

CaseChat Overview and Summary

The parties to this proceeding were Lardner & Razak (the applicants) and the Commissioner of Taxation (the respondent). The applicants sought judicial review of the Commissioner's decision to refuse their application for a private ruling concerning the deductibility of certain expenses. The matter came before Foster J of the Federal Court of Australia.

The central legal issue before the court was whether the Commissioner had erred in law by refusing to issue a private ruling on the deductibility of expenses incurred by the applicants, specifically in relation to their contention that these expenses 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, pursuant to section 8-1 of the *Income Tax Assessment Act 1997* (Cth). The applicants argued that the Commissioner's refusal was based on an incorrect interpretation of the criteria for issuing a private ruling.

Foster J considered the provisions of Division 358 of Schedule 1 to the *Taxation Administration Act 1953* (Cth), which govern private rulings. His Honour noted that the Commissioner is obliged to issue a private ruling unless certain exceptions apply, such as where the application is frivolous or vexatious, or where the Commissioner is satisfied that the applicant has not provided sufficient information to enable the Commissioner to make a private ruling. The court found that the Commissioner's stated reasons for refusal, which focused on the Commissioner's view that the expenses were not deductible, did not align with the statutory criteria for refusing to issue a ruling. The Commissioner's role in a private ruling application is to determine whether the applicant's stated facts and circumstances meet the relevant tax law provisions, not to definitively determine the deductibility of the expenses at that stage.

The court ordered that the Commissioner's decision to refuse to issue a private ruling be set aside, and that the matter be remitted to the Commissioner to be dealt with according to law.

Orders