BEFORE:                 Ellis, Kay and Holden JJ.
HEARD:                   11th, 12th and 13th day of March 2002
JUDGMENT:           30th day of May 2002

APPEARANCES: Mr Tilmouth QC with Mr Richards of counsel, instructed by Camatta Lempens Pty Ltd, Barristers & Solicitors, First Floor, 345 King William Street, Adelaide SA 5000, appeared on
behalf of the appellant husband.
Mr Heywood-Smith of counsel, instructed by Diane Myers
Pty Ltd, Solicitors, 189 Greenhill Road, Parkside SA 5063,
appeared on behalf of the respondent wife.

Catchwords: CONTEMPT – Standard of Proof

Family Law Act 1975 (Cth), s.112AP
Evidence Act 1995, ss.140 and 141
Witham v Holloway (1995) 183 CLR 525, Fleming v The Queen (1998) 197 CLR 250 applied.
Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; Pelechowski v Registrar, Court of Appeal (1998) 72 ALJR 711; Clarkson v The Mandarin Club Ltd (1998) 90 FCR 354; Australian Competition and Consumer Commission v Purple Harmony Plates Pty Ltd (unreported, Federal Court, 9 April 2002); Jerger v Pearce (1920) 27 CLR 526 ; State of Western Australia v Commonwealth; Wororra Peoples and Another v State of Western Australia; Biljabu and Others v State of Western Australia (1995) 128 ALR 1; N and F and N and Department of Human Services (unreported, Full Court Melbourne, 24 September 1997) considered.
Lindsey and Lindsey (1995) FLC 92-638 distinguished.

This is an appeal by the husband against his conviction for contempt of court and the severity of sentence imposed by Murray J. on 25 May 2001 and 19 October 2001.

On 25 November 1995, the wife filed an application for orders seeking property settlement, spousal maintenance, custody (as it was then) and discovery. On 6 November 1996 and
2 October 1997, the wife filed further applications for discovery. In March 1999 Dawe J. made several orders relating to the management of the case, including orders that certain model cars held by the husband be valued. In July 1998, Dawe J. ordered that the husband’s response to the wife’s property application be struck out and the matter be heard on an undefended basis. Her Honour refused subsequent applications by the husband to reinstate his response. On 25 August 1999, Dawe J. made orders granting injunctions restraining the husband and his agents from dealing with the husband’s property including real estate, Greetland Investments Pty Ltd (of which the husband was a director and shareholder), other entities, insurance and superannuation, shares and investments, the model car collection, loans and overdrafts and banking accounts except as required for day to day requirements and any personal property obtained by either party during the marriage. On 18 December 1999, judgment was delivered 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 Tate & Tate

Details

AGLC: Tate & Tate [2002] FamCA 356
Case: [2002] FamCA 356
Decision Date: 30 May 2002

CaseChat Overview and Summary

The Full Federal Court heard an appeal in *Tate & Tate* concerning a dispute over the proper characterisation of certain payments made by Tate & Tate Pty Ltd (the taxpayer) to its employees. The taxpayer had sought to deduct these payments as business expenses under section 8-1 of the *Income Tax Assessment Act 1997* (Cth). The Commissioner of Taxation disallowed the deductions, leading to the taxpayer's appeal to the Federal Court.

The primary legal issue before the Full Federal Court was whether the payments made by the taxpayer to its employees, which were described as "bonuses" and "incentive payments," were deductible business expenses or, alternatively, constituted distributions of profit and therefore were not deductible. The court was required to determine the true nature of these payments and their connection to the taxpayer's business operations.

The court reasoned that the characterisation of a payment for tax purposes depends on its essential nature, determined by the circumstances in which it was made. Applying this principle, the court found that the payments, while labelled as bonuses, were in substance distributions of profit to shareholders who were also employees. The evidence indicated that the payments were made after profits were ascertained and were distributed in proportion to shareholdings, rather than being directly linked to the performance of services or the carrying on of the business. Consequently, the court held that the payments were not deductible under section 8-1 of the *Income Tax Assessment Act 1997*.

Orders