Tomaras & Tomaras & Anor and Commissioner of Taxation

The case of Tomaras & Tomaras & Anor and Commissioner of Taxation involved a dispute over the interpretation and application of sections 90AE(1)-(2) of the Family Law Act 1975 (Cth). The core issue was whether these sections confer the power to make an order substituting one party to a marriage for the other in relation to a taxation debt. The Federal Court was tasked with determining this question as it was stated for the court's consideration.

The court considered whether the presumption that statutory provisions expressed in general terms do not bind the Crown applies only to provisions which impose an obligation or a restraint on the Crown. It was argued that if the presumption applies, the absence of an express statement binding the Crown is not determinative. The court applied the reasoning from Bropho v State of Western Australia, which held that the presumption does not necessarily apply to statutes that confer rights or powers. The court also examined the relationship between sections 79 and 90AE, concluding that the express link between these sections provides a strong indication that the Commissioner of Taxation should be treated as a "creditor" for the purposes of section 90AE. The court found that Parliament must be taken to have known how the Commissioner has historically exercised his status as a "creditor" for the purposes of section 79.

The court concluded that the answer to the question posed by the case stated is "Yes", with the caveat that the outcome is subject to a proviso relevant only to the terms of the particular order sought in the substantive proceedings. This decision clarifies the scope of the Commissioner's authority under section 90AE and provides guidance on the application of the presumption regarding statutory provisions and the Crown. The court's reasoning and conclusion ensure that the Family Law Act's provisions are interpreted in a manner consistent with the historical practices and statutory context.