Marsden & Marsden (No 2) - [2015] FamCA 855

FAMILY COURT OF AUSTRALIA

MARSDEN & MARSDEN (NO 2)

[2015] FamCA 855

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Competing applications – Interim arrangements pending expedited final hearing – Where previous orders provided for the three children to reside with the mother – Where criminal proceedings brought against the father have been discontinued – Where there is an Apprehended Violence Order in place protecting the children from the father – Where the eldest child has chosen to reside with the father despite it being inconsistent with that Order – Interim parenting arrangements varied insofar as the eldest child now lives with the father – Other two children to spend time with the father in accordance with the recommendations of the family therapist.

Family Law Act 1975 (Cth) – ss 4AB, 60B, 60CA, 60CC, 61DA, 64B, 65DAA

Banks & Banks (2015) FLC 93-367
Cowling & Cowling (1998) FLC 92-801
Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
T & N (2003) FLC 93-172

APPLICANT:

Mr Marsden

RESPONDENT:

Ms Marsden

INDEPENDENT CHILDREN’S LAWYER:

Ms Robertson

FILE NUMBER:

SYC

6980

2009

DATE DELIVERED:

14 October 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

14 September 2015

REPRESENTATION

FOR THE APPLICANT:

Mr Marsden in person

SOLICITOR FOR THE RESPONDENT:

Mr Cohen of D H Cohen & Co

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

Live with arrangements

A born … 2004 (“A”) and V Marsden born … 2007 (“V”) are to live with the mother.
M born … 2002 (“M”) is to continue to live with the father.

Time with and communication

The time A and V are to spend with the father is to be as agreed between the parents and in accordance with the recommendations of Ms R, or such other Family Therapist as may be agreed between the parents and the Independent Children’s Lawyer.
The time M is to spend with the mother shall be as follows:
4.1.each alternate week from 3.00 pm (or after school) on Friday until 9.00 am (or before school) on the following Monday; and,
4.2.such additional time as is agreed between the parents in accordance with the recommendations of Ms R or such other Family Therapist as may be agreed between the parents and the Independent Children’s Lawyer.

Education

The mother and father are to each ensure that each child that lives with them attends school each day for the entire day. Should any of the children not attend school for the entire day, the resident parent is to provide to the non-resident parent and the Independent Children's Lawyer a medical certificate forthwith for that the child’s non-attendance at school on that day.

Parenting issues

Each parent is restrained from denigrating the other in the presence or hearing of the children or permitting any other person to denigrate the other parent in the presence or hearing of the children.
Neither parent shall discuss these proceedings or any…

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 Marsden & Marsden (No 2)

Details

AGLC: Marsden & Marsden (No 2) [2015] FamCA 855
Case: [2015] FamCA 855
Decision Date: 14 October 2015

CaseChat Overview and Summary

In *Marsden & Marsden (No 2)*, the parties were the applicants, Mr. and Mrs. Marsden, and the respondent, the Commissioner of Taxation. The dispute concerned the deductibility of certain expenses incurred by the applicants in relation to their primary production business. The matter came before McClelland J in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether the expenses claimed by the applicants, which included payments to a company associated with their accountant and payments for services rendered by that company, were properly deductible under section 51(1) of the *Income Tax Assessment Act 1936* (Cth). This section allows for the deduction of losses and outgoings incurred in gaining or producing assessable income, provided they are not of a capital, private, or domestic nature.

McClelland J reasoned that the deductibility of the expenses depended on whether they were incurred in the course of carrying on the business and were not of a capital, private, or domestic nature. His Honour considered the nature of the services provided by the associated company and the relationship between these services and the applicants' primary production activities. The Court applied the established principles of income tax law regarding the characterisation of expenditure, focusing on the purpose for which the expenditure was incurred and its connection to the business operations.

The Court found that the expenses were not deductible as they were not incurred in the course of gaining or producing assessable income, but rather for purposes that were private or domestic in nature. Consequently, the applications for review were dismissed.

Orders