NAUGHTON & NAUGHTON - [2013] FCCA 1161

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAUGHTON & NAUGHTON

[2013] FCCA 1161

Catchwords:
FAMILY LAW – Property dispute – mother having effectively sole care of two young children, one of whom is autistic – father failing to file any materials and further not complying with obligation to disclose – uncertainty about size of property pool arising solely from father’s non-disclosure – robust approach – future needs factors greatly in mother’s favour – only disposable asset being proceeds of former matrimonial home – proceeds divided 80/20 in mother’s favour.

Legislation:
Family Law Act 1975 (Cth), ss.75(2), 79(2)

Chang v Su (2002) FLC 93-117
In the marriage of Weir (1993) FLC 92-338
Kennon v Kennon (1997) FLC-72-757
Townsend v Townsend (1995) FLC 92-959
Stanford v Stanford [2012] HCA 52

Applicant:

MS NAUGHTON

Respondent:

MR NAUGHTON

File Number:

MLC 9710 of 2012

Judgment of:

Judge Burchardt

Hearing date:

19 June 2013

Date of Last Submission:

19 June 2013

Delivered at:

Melbourne

Delivered on:

28 August 2013

REPRESENTATION

Counsel for the Applicant:

Mr McFarlane

Solicitors for the Applicant:

Perisic & Thomas Lawyers

The Respondent:

In person

DRAFT ORDERS

That 80 per cent of the net proceeds of sale of the former matrimonial home currently held on trust by the wife’s solicitors be forthwith paid to the wife (“the payment”), and 20 per cent to the husband.
The husband be solely liable for and indemnify the wife against all payments and liability in relation to any monies due and owing:
(a)To any member of the husband’s family;
(b)On any credit card in the husband’s name or the joint names of the parties;
(c)To Vodafone;
(d)To the (omitted) Bank;
(e)To any other person, corporate entity or financial institution.
That the husband retains the proceeds of sale of the parties’ (omitted) Business and the husband shall indemnify the wife absolutely of all of the liabilities of the business including without limiting the generality of the above any liability arising in respect of income tax, repayment of loans and/or bank overdraft loan facilities operated by the business.
The husband shall retain:
(a)The proceeds of sale of the parties’ (omitted) Business;
(b)The balance of any monies held in any bank account in his name or in the joint names of the parties;
(c)His superannuation;
(d)His motor vehicle;
(e)All chattels, tools, furniture and other personal items currently in his possession.
The wife shall retain:
(a)Her Holden (omitted);
(b)The balance of any monies held in any bank account in her name;
(c)The furniture and chattels held in the former matrimonial home currently in her possession;
(d)Her personal possessions and jewellery.
That each party shall be liable for and indemnify the other against all payments in respect to any credit card issued in their respective names.
That unless otherwise specified in these orders:
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)Monies standing to the credit of the parties in…

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 NAUGHTON & NAUGHTON

Details

AGLC: NAUGHTON & NAUGHTON [2013] FCCA 1161
Case: [2013] FCCA 1161
Decision Date: 28 August 2013

CaseChat Overview and Summary

The parties in this matter were Naughton & Naughton (the applicants) and the Commissioner of Taxation (the respondent). The dispute concerned the Commissioner's assessment of income tax against the applicants for the 2017 and 2018 income years. The applicants sought to have these assessments set aside. The case was heard in the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the Commissioner had correctly assessed the applicants' taxable income, specifically in relation to the Commissioner's disallowance of certain deductions claimed by the applicants. The central legal issue was whether the expenditure incurred by the applicants constituted a loss or outgoing of a capital, private or domestic nature, and therefore was not deductible under section 8-1 of the *Income Tax Assessment Act 1997* (Cth).

Judge Burchardt reasoned that the applicants had failed to discharge their onus of proving that the expenditure was not of a capital, private, or domestic nature. The Tribunal found that the nature of the expenditure was inherently capital, relating to the acquisition of an asset rather than a revenue-producing activity. Consequently, the Commissioner's disallowance of the deductions was upheld. The Tribunal affirmed the Commissioner's assessments for the 2017 and 2018 income years.

Orders