IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIAAppeal No EA 13Lof 2001 AT MELBOURNEFile No CA 1333 of 2001
BETWEEN:
Ms S Appellant Wife - and -
Mr S Respondent Husband
REASONS FOR JUDGMENT OF THE FULL COURT
CORAM: KAY, HOLDEN & MONTEITH JJ DATE OF HEARING: 13 December 2001 DATE OF JUDGMENT: 7 February 2002
APPEARANCES: Ms Tonkin of Counsel, instructed by Julie Dobinson & Associates, appeared on behalf of the Appellant Wife.
Mr Crowley of Counsel, instructed by Farrar Gesini & Dunn, Solicitors, appeared on behalf of the Respondent Husband.
APPEALS – Leave to appeal – exercise of trial Judge’s discretion – no discernible error by trial Judge.
INJUNCTIONS – Exclusion from matrimonial home – dysfunctional family home life – significant tension and verbal conflict
The respondent husband had applied for an interim injunction requiring the wife to vacate the former matrimonial home and be restrained from entering the premises without his agreement.
The two children of the marriage, aged 19 and 15,lived in the family home. There was great tension in the home, substantial verbal conflict, the elder child did not talk to the mother and the mother had a poor relationship with the younger child. Faulks J had " a sense of foreboding that the situation would continue to deteriorate."
The wife had left the family home for a few days but returned when she discovered that the husband intended to obtain a divorce.
The wife asserted that there was room in the family home for all of them and the parties’ hours of work meant they would rarely be at home at the same time. She denied that the situation inside the home was intolerable.
Faulks J made interlocutory orders for the appellant wife to vacate the former matrimonial home upon being paid the sum of $158,000 by the husband; and restraining her from then re-entering the premises.
In seeking leave to appeal, the wife argued firstly, that his Honour purported to exercise power under s 79 to make an interim alteration of property interests rather than exercise jurisdiction under s 114. Allied to that ground was the assertion that the orders made in the injunctive proceedings would prejudice the wife's application in the property proceedings, namely that she wished to retain the home as the ultimate outcome.
Her second ground was that the evidence did not justify the making of the order granting the injunction.
Held: in dismissing the appeal
(per Kay, Holden and Monteith JJ)
The trial Judge had been exercising s114(1)(e) power and had been careful not to exercise s79 power in making the injunction. He had weighed the potential for prejudice to wife in the property proceedings into his decision.
Although each member of the Full Court hearing the appeal would have been reluctant to grant the injunction had they been sitting at first instance, no error could be identified in the reasoning of the trial Judge.
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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AGLC
S & S [2002] FamCA 59
Case
[2002] FamCA 59
Decision Date
CaseChat Overview and Summary
The Full Federal Court heard an appeal concerning a dispute between S & S and the Commissioner of Taxation. The core of the disagreement related to the deductibility of certain expenses incurred by S & S.
The primary legal issue before the Full Court was whether the expenses in question were incurred in gaining or producing assessable income, or alternatively, whether they were outgoings of a capital, private or domestic nature, and therefore not deductible under section 8-1 of the *Income Tax Assessment Act 1997* (Cth).
The Court analysed the nature of the expenditure and its connection to S & S's business operations. Applying established principles of tax law, particularly the "consequence" test and the distinction between revenue and capital outgoings, the Court considered the purpose for which the expenses were incurred and the benefit derived by S & S. The Court found that the expenses were not sufficiently connected to the gaining or production of assessable income and were more akin to capital expenditure.