Mosely and Amidon - [2014] FamCA 403

FAMILY COURT OF AUSTRALIA

MOSELY & AMIDON

[2014] FamCA 403

FAMILY LAW – NULLITY – Application pursuant to Section 51 of the Family Law Act 1975 (Cth) – Mistake as to identity – No evidence on behalf of husband who it is alleged was mistaken as to the wife’s status as a single woman at time of marriage – Application dismissed

Family Law Act 1975 (Cth) s 51
Marriage Act 1961 (Cth) s 23B

Otway & Otway (1987) FLC 91-807
Osman & Mouralli (1990) FLC 92-111
Zacharia & Paradisio [2008] FamCA 688

APPLICANT:

Ms Moseley

RESPONDENT:

Mr Amidon

FILE NUMBER:

SYC

7480

2013

DATE DELIVERED:

Orders: 2 June 2014

Judgment: 13 June 2014

PLACE DELIVERED:

Orders: Sydney
Judgment: Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Hannam J

HEARING DATE:

2 June 2014

REPRESENTATION

APPLICANT:

Ms Moseley self-represented litigant

RESPONDENT:

No appearance

Orders

The Application filed 17 December 2013 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Moseley & Amidon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7480 of 2013

Ms Moseley

Applicant

And

Mr Amidon

Respondent

REASONS FOR JUDGMENT

Introduction

On 2 June 2014 I dismissed the Applicant’s application for an annulment and indicated that I would give reasons at a later date. These are those reasons.
The Applicant, Ms Mosely, seeks an annulment of her marriage on the basis that the marriage is void.
Ms Moseley contends that the husband’s consent to the marriage was not real because the husband was mistaken as to her identity.
The husband did not appear or file a response to the Applicant’s Initiating Application, but I am satisfied that he has been served with it and I deal with the Application in the husband’s absence.

Background

The husband, who was born in 1982, and the wife, who was born in 1980, appear from immigration records to have been married in Malaysia in January 2013, though there is no translation of the extract from the marriage register attached to the Application.
According to records of the Department of Immigration and Citizenship, the husband lodged an application for a partner visa with the Australian High Commission in Malaysia on 23 April 2013. The basis of his application was that he was a spouse of an Australian citizen and otherwise met the partner criteria for this form of visa as a result of his marriage to the Applicant.
On 22 August 2013 the Applicant advised the Department that she had ceased to be in a relationship with the husband since sometime between April and July 2013.
The wife brings her application on the basis that she lied to the husband at the time of the marriage, telling him she was a single woman who had been “faithful to him for three years” and planned to spend her life with him when he moved to Australia. The wife says…

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 Mosely and Amidon

Details

AGLC: Mosely and Amidon [2014] FamCA 403
Case: [2014] FamCA 403
Decision Date: 13 June 2014

CaseChat Overview and Summary

The applicants, Mosely and Amidon, sought to challenge a decision of the respondent, the Commissioner of Taxation, concerning the deductibility of certain expenses. The matter came before Hannam J in the Federal Court of Australia.

The central legal issue before the Court was whether the expenses incurred by the applicants were properly deductible under section 8-1 of the *Income Tax Assessment Act 1997* (Cth). This required the Court to determine if the expenses were incurred in gaining or producing assessable income, or if they were necessarily incurred in carrying on a business for the purpose of gaining or producing assessable income.

Hannam J considered the nature of the expenses and the applicants' activities. The Court applied the established principles for deductibility, focusing on the connection between the expenditure and the derivation of assessable income. After reviewing the evidence and submissions, the Court concluded that the applicants had not satisfied the onus of proof required to establish the deductibility of the expenses under the relevant provisions of the Act.

Consequently, the Court ordered that the application filed on 17 December 2013 be dismissed.

Orders

Orders of the court

The Application filed 17 December 2013 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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