Munt & Munt - [2007] FamCA 807

FAMILY COURT OF AUSTRALIA

MUNT & MUNT

[2007] FamCA 807

FAMILY LAW - PROPERTY SETTLEMENT – Contributions – Husband suffered work injury and received WorkCover payment – Consideration of treatment of award of damages - Husband in receipt of disability support pension and has not worked for 13 years – Husband provided no recent evidence regarding his capacity to obtain work - Husband contributed significant capital sums – Wife contributed through earnings from her employment – Wife has care of 12 year old child of the marriage - Contributions assessed at 62.5%/37.5% in favour of the husband - Adjustment of 5% in favour of wife for s 75(2) factors – Husband assessed to have 25% interest in wife’s superannuation

FAMILY LAW - SPOUSAL MAINTENANCE – Application by husband for spousal maintenance dismissed

Family Law Act 1975 (Cth) ss 72, 75(2) & 75(3)

Child Support (Assessment) Act 1989 (Cth) s 117(7B)

Omacini & Omacini (2005) FLC 93-218
Coghlan & Coghlan (2005) FLC 93-220
Pierce & Pierce (1999) FLC 92-844
Williams & Williams (1985) FLC 91-628
Aleksovski & Aleksovski (1996) FLC 92-075
Farnell & Farnell (1996) FLC 92-681
Brandt & Brandt (1997) FLC 92-758
K & K [2004] FamCA 360

APPLICANT:

MRS MUNT

RESPONDENT:

MR MUNT

FILE NUMBER:

ADF

1001

2006

DATE DELIVERED:

18 July 2007

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

JR Forbes

HEARING DATE:

30 & 31 May 2007, 1 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr D Whittle

SOLICITOR FOR THE APPLICANT:

Nelson & Co

THE RESPONDENT:

In person with interpreter

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the Reasons of the Court delivered this day will for all publication and reporting purposes be referred to as MUNT & MUNT

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1001 of 2006

MRS MUNT

Applicant

And

MR MUNT

Respondent

REASONS FOR JUDGMENT

The wife applies for settlement of property. In an application filed 13^th July 2006 she sought an order in general terms, that is to say, the identification of all items of real and personal property and a division thereof as may be determined by the court.
The husband by way of his Response, Amended Response, and Further Amended Response adopted the approach taken by the wife and in addition, sought $195.00 per week by way of spousal maintenance. Each party sought costs against the other.

Introduction

This was a 13 year marriage with one child. The parties for all but the first year of the marriage have lived in Australia where they remain. Early in the marriage the husband suffered a work injury and received periodic and a lump sum WorkCover payout as well as pre-payment of his superannuation because of disability. The husband also inherited a house property, the proceeds of which were placed into the matrimonial home. There is an issue about the weighing of the husband’s contributions as well as his present earning capacity.
For the wife, she worked as a teacher as and from 2000. She continues in that…

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: Munt & Munt [2007] FamCA 807
Case: [2007] FamCA 807
Decision Date: 18 July 2007

CaseChat Overview and Summary

In *Munt & Munt*, the parties were the applicants, Mr. and Mrs. Munt, 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 the Federal Court of Australia.

The primary legal issue before the Court was whether the expenses, which related to the acquisition of shares in a company that provided services to the applicants' farming business, constituted a deductible outgoing under section 8-1 of the *Income Tax Assessment Act 1997* (Cth). Specifically, the Court had to determine if these expenses were incurred in gaining or producing assessable income, or if they were of a capital, or of a capital, nature.

Justice Forbes considered the nature of the expenditure and its connection to the applicants' business operations. His Honour applied the principles established in cases such as *Sun Newspapers Ltd v Federal Commissioner of Taxation* and *Amalgamated Zinc (Australia) Ltd v Federal Commissioner of Taxation*, which distinguish between revenue and capital outgoings. The Court found that the expenditure was capital in nature, as it was directed towards acquiring an asset that would provide a lasting benefit to the business, rather than being an expense incurred in the day-to-day running of the business.

The Court therefore dismissed the applicants' appeal, finding that the expenses were not deductible.

Orders