PERRAS & PERRAS - [2020] FCCA 3109

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERRAS & PERRAS

[2020] FCCA 3109

Catchwords:
FAMILY LAW – Parenting – young children – distance between homes – parenting capacity – allegations of mental ill health - family violence.
FAMILY LAW – Property – fall in value of major asset – withdrawal of joint funds after separation.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC(2A), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 65DAC, 75(2), 79(1), 79(2), 79(4), 102NA(1)(c)(i)

Cases cited:

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Applicant:

MS PERRAS

Respondent:

MR PERRAS

File Number:

CAC 1281 of 2016

Judgment of:

Judge Hughes

Hearing dates:

16, 17 and 18 April 2018, 16, 17 and 18 July

2018, 6 August 2018, 14 and 15 November 2019 and 14 January 2020

Date of Last Submission:

11 March 2020

Delivered at:

Canberra

Delivered on:

20 November 2020

REPRESENTATION

Counsel for the Applicant:

Ms Ryan and Ms Aidman

Solicitors for the Applicant:

Elringtons

Counsel for the Respondent:

Self represented

ORDERS

Parenting orders

All previous orders in relation to the children X, born in 2013, and Y, born in 2015, are discharged.
The mother shall have sole parental responsibility for the children but, before making any decision concerning a major long term issue concerning the children, she shall:
(a)advise the father in writing of the decision to be made and her thoughts about it, at least 28 days in advance;
(b)invite the father’s input in relation to the decision;
(c)consider any views the father offers before making her decision; and
(d)advise the father in writing of the decision within 7 days.
The children shall live with the mother.
Unless otherwise agreed in writing, the children shall spend time with the father as follows:
(a)during school term, on the first, fifth and ninth weekend of term, from 5pm Friday to 5pm Sunday or Monday if the Monday is a public holiday;
(b)for half of all school holidays at the ends of Terms 1, 2 and 3 each year at times to be agreed or, failing agreement, for the first half in years ending in an odd number and the second half in years ending in an even number;
(c)for half of the long summer holidays at the end of Term 4 each year as follows:
(i)on a week about basis in the summer holidays commencing in December 2020, starting with the first week with the mother;
(ii)for the summer holidays commencing in December 2021 and December 2023, with the father for weeks 1 and 2, with the mother for weeks 3 and 4, the father for week 5 and the mother for week 6;
(iii)for the summer holidays commencing in December 2022 and December 2024 with the mother for weeks 1 and 2, the father for weeks 3 and 4, the mother for week 5 and the father for week 6;
(iv)from December 2025, for the first half of the summer school holidays with the father and the second half with the mother and alternating each year…

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 PERRAS & PERRAS

Details

AGLC: PERRAS & PERRAS [2020] FCCA 3109
Case: [2020] FCCA 3109
Decision Date: 20 November 2020

CaseChat Overview and Summary

The parties to this proceeding were the applicants, Mr. and Mrs. Perras, and the respondent, the Commissioner of Taxation. The dispute concerned the Commissioner's assessment of additional income tax against the applicants for the 2013 and 2014 income years, arising from the Commissioner's view that certain payments received by the applicants from a company, P.E.R.R.A.S. Pty Ltd, constituted assessable income rather than loans. The matter came before Hughes J of the Federal Court of Australia.

The primary legal issue before the court was whether the payments made by P.E.R.R.A.S. Pty Ltd to the applicants were loans, as contended by the applicants, or dividends, and therefore assessable income, as determined by the Commissioner. This required the court to consider the nature of the transactions and the intention of the parties at the time the payments were made, in accordance with established principles for distinguishing between loans and dividends.

Hughes J found that the evidence did not support the applicants' assertion that the payments were intended to be loans. Crucially, there was no evidence of any intention to repay the funds, no fixed or determinable date for repayment, and no interest was charged on the amounts advanced. The court applied the principle that where advances are made by a company to a shareholder without any expectation of repayment, they are to be treated as dividends. Consequently, the court held that the payments were dividends and therefore assessable income.

The court ordered that the applicants' application be dismissed and that the Commissioner's amended assessment for the 2013 and 2014 income years be affirmed.

Orders